[Federal Register: July 10, 2002 (Volume 67, Number 132)]
[Rules and Regulations]
[Page 45821-45883]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10jy02-20]
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Part III
Department of Transportation
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National Highway Traffic Safety Administration
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49 CFR Part 573 et al.
Reporting of Information and Documents About Potential Defects
Retention of Records That Could Indicate Defects; Final Rule
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
49 CFR Parts 573, 574, 576, 579
[Docket No. NHTSA 2001-8677; Notice 3]
RIN 2127-AI25
Reporting of Information and Documents About Potential Defects
Retention of Records That Could Indicate Defects
AGENCY: National Highway Traffic Safety Administration (NHTSA), DOT.
ACTION: Final rule.
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SUMMARY: This document adopts a regulation that will implement the
early warning reporting provisions of the Transportation Recall
Enhancement, Accountability, and Documentation (TREAD) Act. Under this
rule, motor vehicle and motor vehicle equipment manufacturers will be
required to report information and to submit documents about customer
satisfaction campaigns and other activities and events that may assist
NHTSA to promptly identify defects related to motor vehicle safety.
We are also adopting amendments to NHTSA's general and tire
recordkeeping regulations to assure that manufacturers retain relevant
information.
The final rule also moves certain existing provisions of NHTSA's
regulations to other parts of the Code of Federal Regulations.
DATES: Effective Date: The effective date of this final rule is August
9, 2002. Applicability Dates: Various provisions of this final rule are
applicable on the dates stated in the regulatory text. See 49 CFR
579.28. Petitions for Reconsideration: Petitions for reconsideration of
the final rule must be received not later than August 26, 2002.
ADDRESSES: Petitions for reconsideration of the final rule should refer
to the docket and notice number set forth above and be submitted to
Administrator, National Highway Traffic Safety Administration, 400
Seventh Street, SW., Washington, DC 20590, with a copy to Docket
Management, Room PL-401, 400 Seventh Street SW., Washington, DC 20590.
FOR FURTHER INFORMATION CONTACT: For non-legal issues, contact Jonathan
White, Office of Defects Investigation, NHTSA (phone: 202-366-5226).
For legal issues, contact Taylor Vinson, Office of Chief Counsel, NHTSA
(phone: 202-366-5263).
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Summary of the Final Rule
II. Background: The TREAD Act (Public Law 106-414)
III. Manufacturers That Will Be Covered by the New Reporting
Requirements
A. Scope of the term ``manufacturer''
1. Proposed requirements for reporting about events in foreign
countries
2. Assertion that extending the definition of ``manufacturer''
to include subsidiaries and affiliates exceeds our statutory
authority
3. Nexus to the motor vehicle industry
4. Duplicate reporting
5. Suggestion to require a ``control relationship'' between
manufacturers and covered subsidiaries and affiliates
6. Proposed application to outside legal counsel
7. Constructive notice of information received by agents
B. Manufacturers of motor vehicles
C. Manufacturers of motor vehicle equipment
1. Original equipment
2. Replacement equipment
3. Tires
4. Definition of ``equipment''
IV. Information That Must Be Reported
A. Production information
B. Definition of ``claim''
C. Definition of ``notice''
D. Identification of the product in claims and notices
E. Claims and notices involving death
1. Whether to define death
2. Claims involving death
3. Notices involving death
4. Information about deaths
F. Claims and notices involving injuries
1. The definition of ``injury''
2. Reporting of incidents in which persons were injured, based
on claims and notices
G. Other possible conditions on reporting of claims and notices
for death and injury
H. Identical or substantially similar motor vehicles or
equipment
1. Substantially similar motor vehicles
2. Substantially similar motor vehicle equipment other than
tires
3. Substantially similar tires
I. Claims involving property damage
1. Definition of ``property damage''
2. Reports of property damage claims; whether to establish
dollar-value thresholds
J. Consumer complaints
1. Definition of ``consumer complaint''
2. The rationale for requiring reports of consumer complaints
K. Warranty claims information
1. Definitions of ``warranty,'' ``warranty claim,'' and
``warranty adjustment''
2. Reports involving warranty claims
L. Field reports
1. Definition of ``field report''
2. Reporting and submission of field reports
M. Customer satisfaction campaigns, consumer advisories;
recalls, or other activities involving the repair or replacement of
motor vehicles or motor vehicle equipment
N. Components and systems covered by reports
O. Updating of information
P. One-time reporting of historical information
V. When Information Must be Reported
A. Periodically
B. Upon NHTSA's request
C. One-time historical report
VI. The Manner and Form in Which Information Will be Reported
VII. How NHTSA Plans to Handle and Utilize Early Warning Information
A. Review and use of information
B. Information in the possession of the manufacturer
C. The requirements are not unduly burdensome
D. Periodic Review
VIII. Extension of Recordkeeping Requirements to Include
Manufacturers of Child Restraint Systems and Tires
IX. Administrative Amendments to 49 CFR Part 573 to Accommodate
Final Rules
Implementing 49 U.S.C. Sections 30166(l) and (m)
X. Rulemaking Analyses
I. Summary of the Final Rule
In our notice of proposed rulemaking (NPRM) (66 FR 66190), we
proposed to divide manufacturers of motor vehicles and motor vehicle
equipment into two groups with different responsibilities for reporting
information that could indicate the existence of potential safety-
related defects. There was no opposition to this approach, and we are
adopting it.
The first group consists of larger manufacturers of motor vehicles,
and all manufacturers of child restraint systems and tires. In general,
the larger vehicle manufacturers must report separately on four
categories of vehicles (if they produced, imported, offered for sale,
or sold 500 or more of a category annually in the United States): light
vehicles, medium-heavy vehicles and all buses, trailers, and
motorcycles.
Deaths. These manufacturers must report certain specified
information about each incident involving a death that occurred in the
United States that is identified in a claim (as defined) against and
received by the manufacturer. They must also report information about
incidents involving a death in the United States that is identified in
a notice received by the manufacturer alleging or proving that the
death was caused by a possible defect in the manufacturer's product.
Finally, they must report on each death occurring in foreign countries
that is identified in a claim against the manufacturer involving the
manufacturer's product, or one that is identical or substantially
similar to a product that the manufacturer has offered for sale in the
United States.
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Injuries. These manufacturers must report certain
specified information about each incident involving an injury that
occurred in the United States that is identified in a claim against and
received by the manufacturer, or that is identified in a notice
received by the manufacturer which notice alleges or proves that the
injury was caused by a possible defect in the manufacturer's product.
Property damage. These manufacturers (other than child
restraint system manufacturers) must report the numbers of claims for
property damage that occurred in the United States that are related to
alleged problems with certain specified components and systems,
regardless of the amount of such claims.
Consumer complaints. These manufacturers (other than tire
manufacturers) must report the numbers of consumer complaints they
receive that are related to problems with certain specified components
and systems that occurred in the United States. Manufacturers of child
restraint systems must report the combined number of such consumer
complaints and warranty claims, as discussed below.
Warranty claims information. These manufacturers must
report the number of warranty claims (adjustments for tire
manufacturers), including extended warranty and good will, they receive
that are related to problems with certain specified components and
systems that occurred in the United States. As noted above,
manufacturers of child restraint systems must combine these with the
number of reportable consumer complaints.
Field reports. These manufacturers (other than tire
manufacturers) must report the total number of field reports they
receive from the manufacturer's employees, representatives, and
dealers, and from fleets, that are related to problems with certain
specified components and systems that occurred in the United States. In
addition, manufacturers must provide copies of certain field reports
received from their employees, representatives, and fleets, but are not
required to provide copies of reports received from dealers.
Production. These manufacturers must report the number of
vehicles, child restraint systems, and tires, by make, model, and model
year, during the reporting period and the prior nine model years (prior
four years for child restraint systems and tires).
These manufacturers must separately report the numbers identified
above for each model and model year, as the rule defines it (ten years
for vehicles and five years for tires and child restraint systems).
A manufacturer or brand name owner of tires will not have to report
any information other than information relating to incidents involving
deaths for limited production tires and other tires exempted from the
Uniform Tire Quality Grading Standards pursuant to 49 CFR
575.104(c)(1). In addition, tire manufacturers need only report
incidents involving deaths for tires other than passenger car tires,
light truck tires, or motorcycle tires. (Manufacturers should note
these exclusions in reviewing the reporting requirements under this
rule, as we may not repeat it in all instances in which it may apply).
The second group of manufacturers consists of all other
manufacturers of motor vehicles and motor vehicle equipment, i.e.,
vehicle manufacturers insofar as they produced, imported, or sold in
the United States fewer than 500 light vehicles, medium-heavy vehicles
(including buses), motorcycles, or trailers annually, manufacturers of
original motor vehicle equipment and manufacturers of replacement motor
vehicle equipment other than child restraint systems and tires. These
manufacturers must report the same information about incidents
involving deaths as the first category, but are not required to report
any other information.
In addition, all vehicle and equipment manufacturers in both groups
must provide copies of all documents sent or made available to more
than one dealer, distributor, owner, purchaser, lessor or lessee, in
the United States with respect to customer satisfaction campaigns,
consumer advisories, recalls, or other activities involving the repair
or replacement of vehicles or equipment.
Reports must be submitted electronically, in specified formats. The
components and systems on which reporting is required will vary,
depending on the type of product involved. Documents such as consumer
advisories must be submitted electronically or in hard copy.
With respect to the information required to be submitted under this
rule, there will be four reporting periods each calendar year of three
months each. The first such report will cover the second calendar
quarter of 2003. Reports, including copies of field reports, will be
due not later than 30 days after the end of a calendar quarter, except
for the final three calendar quarters of 2003, when we are allowing a
period of 60 days after the end of the calendar quarter. Documents
other than field reports that are required to be submitted under this
final rule (those documents currently required under 49 CFR 573.8),
will be due not later than 5 working days after the end of the month in
which they are generated by the manufacturer, beginning with April
2003.
To help NHTSA identify trends that could indicate potential safety
problems, manufacturers will be required, on a one-time basis, to
report the number of warranty claims or adjustments and the number of
field reports for each calendar quarter during the three-year period
from April 1, 2000 through March 31, 2003, the date preceding the
beginning of the first reporting period that is established by the
final rule, April 1, 2003. Submission of copies of field reports is not
required under this one-time provision.
The early warning reporting requirements will comprise Subpart C of
a new 49 CFR Part 579. Following final rulemaking, the foreign defect
reporting requirements proposed on October 11, 2001 (66 FR 51907) will
comprise Subpart B of Part 579. This rule adopts a Subpart A containing
general requirements that will apply to both Subparts B and C, except
where otherwise stated.
We are also adopting amendments that extend the recordkeeping
requirements of 49 CFR Part 576 to child restraint system and tire
manufacturers:
These manufacturers will now be required to maintain the
same types of records that manufacturers of vehicles have been required
to keep under 49 CFR Part 576.
Manufacturers of tires will also be required to retain for
five years records of purchasers of tires they manufacture.
Manufacturers of motor vehicles will be required to retain for five
years records of tires on each vehicle manufactured and the purchaser
of each vehicle. Currently, 49 CFR Part 574 requires that these records
be retained for three years.
In addition, the record retention requirements have been expanded
to require all manufacturers to retain, for five years, the underlying
records on which the information they provide NHTSA under the early
warning rule is based. (For manufacturers of equipment other than tires
and child restraint systems, this is limited to records related to
incidents referred to in claims and notices involving deaths.)
The early warning final rule, the final rule pertaining to foreign
defect campaigns, and current 49 CFR 573.8 will be codified in 49 CFR
Part 579 (2002). Part 573 is being amended to include the provisions of
current Part 579 (2001) with respect to defect and noncompliance
responsibility. These are
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reflected in amendments to the scope, purpose, and definitions of Part
573, and the addition of the substantive requirements of existing
Section 579.5 as a new Section 573.5.
The final rule is effective August 9, 2002. The first quarterly
reporting period for early warning information begins on April 1, 2003.
Quarterly reports for calendar 2003 will not be due until two months
following the end of the quarter, (e.g., the first quarterly report
will be due on August 31, 2003). Thereafter, beginning with the first
quarter of calendar 2004, information is due 30 days following the end
of the reporting period. The one-time report of historical information
will be due September 30, 2003, approximately 90 days following the end
of the first reporting period. The documents that are required to be
submitted on a monthly basis will be due five days after the end of the
month in which they are generated, beginning with April 2003.
II. Background: The TREAD Act (Public Law 106-414)
The Transportation Recall Enhancement, Accountability, and
Documentation (TREAD) Act was enacted on November 1, 2000, Public Law
106-414.
The TREAD Act amends 49 U.S.C. 30166 to add a new subsection (m),
Early warning reporting requirements. This subsection provides for
NHTSA to require manufacturers of motor vehicles and motor vehicle
equipment to submit information, periodically or upon NHTSA's request,
that includes claims for deaths and serious injuries, property damage
data, communications to customers and others, information on incidents
resulting in fatalities or serious injuries from possible defects in
vehicles or equipment in the United States or in identical or
substantially similar vehicles or equipment in a foreign country, and
other information that may assist NHTSA in identifying potential
safety-related defects.
Sections 30166(m)(3), (4), and (5) address, respectively, the
elements to be reported, the handling and utilization of reported
information, and periodic review and update of the final rule.
The crux of the early warning provisions is Section 30166(m)(3),
which states:
(3) Reporting elements.
(A) Warranty and claims data. As part of the final rule * * *
the Secretary [of Transportation] shall require manufacturers of
motor vehicles and motor vehicle equipment to report, periodically
or upon request by the Secretary, information which is received by
the manufacturer derived from foreign and domestic sources to the
extent that such information may assist in the identification of
defects related to motor vehicle safety in motor vehicles and motor
vehicle equipment in the United States and which concerns--
(i) data on claims submitted to the manufacturer for serious
injuries (including death) and aggregate statistical data on
property damage from alleged defects in a motor vehicle or in motor
vehicle equipment; or
(ii) customer satisfaction campaigns, consumer advisories,
recalls, or other activity involving the repair or replacement of
motor vehicles or items of motor vehicle equipment.
(B) Other data. As part of the final rule * * *, the Secretary
may, to the extent that such information may assist in the
identification of defects related to motor vehicle safety in motor
vehicles and motor vehicle equipment in the United States, require
manufacturers of motor vehicles or motor vehicle equipment to
report, periodically or upon request of the Secretary, such
information as the Secretary may request.
(C) Reporting of possible defects. The manufacturer of a motor
vehicle or motor vehicle equipment shall report to the Secretary, in
such manner as the Secretary establishes by regulation, all
incidents of which the manufacturer receives actual notice which
involve fatalities or serious injuries which are alleged or proven
to have been caused by a possible defect in such manufacturer's
motor vehicle or motor vehicle equipment in the United States, or in
a foreign country when the possible defect is in a motor vehicle or
motor vehicle equipment that is identical or substantially similar
to a motor vehicle or motor vehicle equipment offered for sale in
the United States.
The Secretary has delegated to the NHTSA Administrator the
authority to carry out 49 U.S.C. Chapter 301 (49 CFR 1.50(a)).
On January 22, 2001, we issued an advance notice of proposed
rulemaking (ANPRM) to discuss and to solicit comments on the ways in
which NHTSA may best implement these statutory provisions (66 FR 6532).
After considering the many comments provided in response to the ANPRM,
we followed this with a notice of proposed rulemaking (NPRM), published
on December 21, 2001 (66 FR 66190).
On October 11, 2001, we issued a separate NPRM that would implement
another provision of the TREAD Act, adding Section 30166(l) to Title 49
(66 FR 51907). Subsection (l) also applies to manufacturers of motor
vehicles and motor vehicle equipment; it requires them to notify us of
safety recalls and other safety campaigns that they conduct outside the
United States, or are ordered by a foreign government to conduct
abroad, on vehicles and equipment identical or substantially similar to
those sold in the United States. The December 21, 2001 early warning
rule NPRM stated that the definitions proposed in Subpart A of that
NPRM would apply to the rule regarding notification of foreign safety
campaigns.
In response to the NPRM on the early warning rule, we received
comments from a variety of sources. Motor vehicle manufacturers and
associated trade organizations who commented were Ford Motor Company
(Ford), the Truck Manufacturers Association (TMA), the Association of
International Automobile Manufacturers, Inc. (AIAM), the Recreational
Vehicle Industry Association (RVIA), Harley-Davidson Motor Company
(Harley-Davidson), Nissan North America, Inc. (Nissan), Volkswagen of
America, Inc. (for itself, Volkswagen AG and Audi AG) (Volkswagen),
American Honda Motor Company (Honda), the Motorcycle Industry Council
(MIC), Blue Bird Body Company (Blue Bird), General Motors Corporation
(GM), Gillig Corporation (Gillig), Spartan Motors Chassis, Inc.
(Spartan), Porsche Cars North America, Inc. (Porsche), Fleetwood
Enterprises, Inc., (Fleetwood), Utilimaster Corporation (Utilimaster),
and the Alliance of Automobile Manufacturers (the Alliance). The tire
industry was represented by the Rubber Manufacturers Association (RMA).
The Juvenile Products Manufacturers Association (JPMA) represented the
child restraint system industry. Other motor vehicle equipment
manufacturers and associated trade organizations who commented were the
American Motorcyclist Association (AMA), Johnson Controls (Johnson),
the Waste Equipment Technology Association (Wastec), the Specialty
Equipment Market Association (SEMA), the National Truck Equipment
Association (NTEA), the Motor and Equipment Manufacturers Association
(MEMA) for itself and the Original Equipment Suppliers Association, the
National Automobile Dealers Association (NADA), Delphi Automotive
Systems, LLC (Delphi), Webb Wheel Products, Inc. (Webb), and Bendix
Commercial Vehicle Systems, LLC (Bendix). We also received comments
from Public Citizen (PC), Consumers Union (CU), and a number of
individuals concerned about a reference in the NPRM to motorcycle
apparel.
These comments have provided us with numerous insights in
developing this final rule. This completes the first phase of our early
warning rulemaking. Consistent with Section 30166(m)(5), we will
periodically review the final rule and consider possible amendments.
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III. Manufacturers That Will Be Covered by the New Reporting
Requirements
A. Scope of the Term ``manufacturer''
The proposed rule dealt primarily with the information that would
be provided to NHTSA. Most of the information to be provided involved
activities and events related to motor vehicle safety in vehicles and
equipment in the United States; some information would be required with
regard to some claims related to deaths in foreign countries involving
motor vehicles or equipment that are identical or ``substantially
similar'' to vehicles or equipment that are sold in the United States.
The NPRM addressed who was obligated to provide the information
required under the proposed rule. We recognized that the information
identified in the proposed rule could be maintained within various sub-
entities of a multinational corporation. To assure that we received the
information and to preclude non-reporting on the basis that the
information was held by an entity not covered by the regulation, we
proposed to define the covered entity--the manufacturer--inclusively to
include corporate parents, subsidiaries and affiliates. Under this
formulation, the information identified in the proposed rule would have
to be submitted to NHTSA regardless of where it was maintained in a
multinational corporation with numerous subsidiaries. At the same time,
as a practical matter, we wrote the reporting obligations such that
they would most likely be carried out by the entity that has
traditionally reported to NHTSA.
In particular, in the NPRM, at Section 579.3(a) (``Application''),
we stated ``This part applies to all manufacturers of motor vehicles
and motor vehicle equipment with respect to all vehicles and equipment
that have been offered for sale, sold, or leased by the manufacturer,
any parent corporation of the manufacturer, any subsidiary or affiliate
of the manufacturer, or any subsidiary or affiliate of any parent
corporation of the manufacturer.'' In subsection (b), we stated that
``[i]n the case of any report required under this part, compliance by
either the fabricating manufacturer or the importer of the motor
vehicle or motor vehicle equipment shall be considered compliance by
both.'' \1\
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\1\ The text of proposed subsection (b) directly parallels the
existing Code of Federal Regulations provision that governs the
responsibilities of fabricating manufacturers and importers with
respect to the filing of reports informing NHTSA of defective and
noncompliant motor vehicles and motor vehicle equipment and of the
progress of recall campaigns. See 49 CFR 573.3(b).
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Further, at proposed Section 579.4, we stated that the term
``manufacturer'' is used as defined in 49 U.S.C. 30102; however, for
purposes of Part 579, it also ``includes any parent corporation of the
manufacturer, any subsidiary or affiliate of the manufacturer, any
subsidiary or affiliate of any parent corporation of the manufacturer,
and any legal counsel retained by the manufacturer.''
In the NPRM, we stated that the TREAD Act expanded manufacturers'
responsibilities with respect to foreign events and activities and thus
has extraterritorial effect. As we noted, in its comments on the ANPRM,
the Alliance recognized that the TREAD Act was clearly written by
Congress to apply to persons and activities outside the United States,
and that the rule could reasonably require reports from foreign
companies manufacturing vehicles for sale in the United States as long
as the reports related to issues that could arise in those vehicles.
Under the NPRM, foreign entities would be required to provide the same
information as we would require for domestic manufacturers, but only
with respect to vehicles and equipment that they sell in the United
States and to incidents involving death outside the United States that
involve identical or substantially similar motor vehicles or equipment.
See 66 FR at 66193-66194. We explained that, in view of both the
definition of manufacturer and the specific provisions of Section
30166(m), we believed that the agency has authority to require a report
from the entity that maintains the information, from the fabricating
manufacturer, and from the importer of the vehicle or equipment, but
that we were proposing to require reporting only by either the
fabricating manufacturer or by the importer, because this was
consistent with current reporting under 49 CFR Part 573 and with our
recent proposals for reporting of safety recalls and other safety
campaigns in foreign countries, pursuant to 49 U.S.C. 30166(l). See 66
FR at 66193-66194. And we observed that a multinational corporation
must adopt practices to ensure that all relevant information on matters
for which reports are required is made available to that corporation's
designated reporting entity, so that the designated entity timely
provides the information to NHTSA. We stated that a multinational
corporation would be violating the law if it designated its U.S.
importer as its reporting entity but failed to assure that the importer
was provided with the information required to be reported. See id. at
66194.
In addition, in the preamble to the NPRM, at Section III.D, we
explained that we proposed to deem information (such as claims-related
information) that is initially received by representatives of the
manufacturer (such as their registered agents and outside counsel) to
be in the possession of the manufacturer, and thus to require each
manufacturer to ensure that entities it has the ability to control
furnish it with the information covered by this rule so that the
manufacturer may make a full and timely report to NHTSA. However, we
also stated explicitly that we were not proposing to require such
representatives to report directly to NHTSA. See 66 FR at 66194.
Many manufacturers and trade associations commented on various
aspects of the scope of ``manufacturer,'' particularly with respect to
subsidiaries and affiliates (including law firms). These commenters
included AIAM, the Alliance, Delphi, Ford, GM, Harley-Davidson, Honda,
Bendix, MEMA, Nissan, RMA, TMA, Volkswagen, and Webb. Ford, GM, Nissan,
and Volkswagen also stated that they supported the Alliance's comments;
Honda also stated that it supported AIAM's comments. The comments are
discussed by issue, below.
1. Proposed Requirements for Reporting About Events in Foreign
Countries
Foreign manufacturers that manufacture vehicles or equipment for
sale in the United States have long been subject to the reach of the
American legal and regulatory system. They are subject to the
requirement that they certify that all their vehicles or equipment
imported into the United States comply with applicable Federal motor
vehicle safety standards. 49 U.S.C. 30115. They are subject to recall
provisions. 49 U.S.C. 30117-120. They have been required to provide to
NHTSA copies of all notices, bulletins, and other communications to
more than one U.S. distributor, dealer, or purchaser regarding defects.
49 U.S.C. 30166(f) and 49 CFR 573.8. They are subject to record keeping
and reporting provisions. 49 U.S.C. 30166 and 49 CFR Part 576. The
Vehicle Safety Act requires such manufacturers to appoint agents for
the service of process in actions involving this agency (49 U.S.C.
30164; see 49 U.S.C. 30102(a)(5)(A)). Both foreign and domestic
manufacturers also appoint registered agents for the service of
judicial process in general; these may be, but are not
[[Page 45826]]
required to be, the same agents who register with NHTSA. Furthermore,
foreign manufacturers that have U.S. subsidiaries do not rely
exclusively on their American subsidiaries to conduct business before
this agency. Rather, both Asian and European manufacturers have
routinely participated in meetings at NHTSA headquarters in defects
investigations, and even appear in litigation involving this agency.
As acknowledged by the Alliance in its comments on the ANPRM, the
TREAD Act was clearly intended by the Congress to apply
extraterritorially. The Alliance stated that this creates a ``whole new
body of law and potential regulation'' in the area of gathering and
reporting of information from persons overseas on their overseas
activities.
In the NPRM, we focused primarily on information involving events
or activities in the United States and to a lesser degree on certain
foreign claims involving vehicles and equipment that are identical or
substantially similar to those sold in the United States. As noted
above, we proposed, at Section 579.3(a) and Section 579.4(a), to adopt
a single, broad definition of manufacturer to assure that we received
this information, be it in the possession of a domestic or foreign
component of the manufacturer.
Several commenters, including the Alliance, Nissan, VW, and AIAM,
objected to the breadth of our proposed definition of manufacturer. The
Alliance and Nissan asserted that the proposed definition impermissibly
failed to articulate a nexus between the covered manufacturers and the
United States, and that in the absence of such a nexus, the proposed
definition amounted to an attempt to assert extraterritorial
jurisdiction in violation of international law. VW stated that NHTSA
appeared to have recognized in the preamble to the NPRM that reporting
obligations must be limited to foreign entities that manufacture
vehicles or equipment for export to the U.S. (citing 66 FR 66193), but
that NHTSA had failed to incorporate this recognition into the proposed
regulatory text.
In our opinion, the proposed regulations were based upon and
incorporated an adequate nexus to the United States. In addition to
addressing events and acts in the United States, consistent with the
TREAD Act, we required the submission of relatively limited information
about claims for deaths in foreign motor vehicles that are
``substantially similar'' to vehicles that are sold in the United
States. The substantial similarity of those foreign vehicles to their
American counterparts creates a sufficient nexus to the United States.
As we indicated in the preamble to the NPRM (see 66 FR at 66193),
we dealt with the nexus issue in the provisions governing the substance
of the reports, rather than in the definition or ``application''
sections. However, to put this matter to rest, in response to the
comments from the Alliance and others, we have decided to modify
proposed Section 579.3(a), Application, by inserting, after the word
``leased,'' the phrase ``in the United States'' and by inserting, at
the very end, with respect to vehicles and equipment offered for sale,
sold or leased in foreign countries, the phrase ``substantially similar
to any motor vehicles or motor vehicle equipment that have been offered
for sale, sold, or leased in the United States.'' This will not make a
substantive change in what we proposed.
We note further that we did not receive any comments on this aspect
of the NPRM from any other branch or office of the U.S. government or
from any foreign government.
2. Assertion that extending the definition of ``manufacturer'' to
include subsidiaries and affiliates exceeds our statutory authority
Some commenters challenged the breadth of coverage of proposed
Sections 579.3(a) and 579.4(a) based on the assertion that we lack
statutory authority to include subsidiaries and affiliates within the
definition of ``manufacturer.'' They contended that our proposal to do
so violates congressional intent to limit the early warning
requirements to those entities that fall within the literal Safety Act
definition of the term--a person manufacturing or assembling vehicles
or equipment, or importing same for resale (49 U.S.C. 30102(a)(5)(A),
(B)). This position was presented in the abstract, without any
presentation of where the parent companies' headquarters, importing and
exporting subsidiaries, and assembly operation subsidiaries are
located, and without any showing whether or how, under their view of
the proper definition of manufacturer, NHTSA would be assured of
receiving information specifically covered by section 3 of the TREAD
Act; e.g., information on foreign safety recalls and other foreign
safety campaigns and information on incidents in foreign countries
involving fatalities alleged or proven to be caused by a possible
defect in a motor vehicle that is identical or substantially similar to
one offered for sale in the United States. See 49 U.S.C.
30166(l),(m)(3)(C). Implicit in their view was that, if information on
foreign recalls, foreign deaths, or other TREAD Act categories was in
the possession of a subsidiary that was not a manufacturer, assembler,
or importer for resale, as referred to above, there would be no legal
obligation to report such TREAD Act-related information to NHTSA.
We disagree with this assertion. Our proposal to include the parent
and subsidiaries and affiliates within the term ``manufacturer'' was
derived from our authority to implement 49 U.S.C. 30166(l) and (m).
These sections invest NHTSA with substantive rulemaking authority and
require that we exercise it. One element of this authority to issue
substantive rules is the ability to construe the statute. This includes
interpreting statutory provisions, such as the definition of
``manufacturer.'' Moreover, our interpretation is entirely consistent
with congressional intent. The manifest intent was that NHTSA have the
information to assist in promptly identifying safety-related defects.
In contrast, under the industry commenters' position, multinational
companies would not have to report foreign recall and early warning
information if it was not held by entities that fit squarely into their
definition of manufacturer--the assembler or the importer for resale.
This is inconsistent with the TREAD Act.
The TREAD Act was enacted in the context of substantial numbers of
deaths that occurred in the United States after defect-related deaths
had occurred in South America and the Middle East. The multinational
corporations that made and sold the vehicle (Ford Explorer) and
equipment (Firestone tires) were aware of assertions that their
products had caused these deaths and had conducted safety campaigns in
foreign countries. They had not informed NHTSA of these matters and
NHTSA was not aware of them until after it opened a formal defect
investigation in the spring of 2000. Congress sought to correct this
reporting deficiency, among other things.
Congress was aware that the vehicle and tire industries are
comprised of multinational corporations, most of which have their
principal place of business abroad, with numerous operations and
subsidiaries around the world. With increased globalization and efforts
to lower labor costs, this includes assembly operations in numerous
countries. Of the larger light vehicle manufacturers, only two (GM and
Ford) are based domestically, and they have numerous international
subsidiaries. The remainder, including Honda, Nissan, Toyota,
Volkswagen, DaimlerChrysler AG, and BMW, are
[[Page 45827]]
headquartered abroad, with one or more U.S. subsidiaries.\2\ Similarly,
the major tire producers are multinational corporations. Bridgestone/
Firestone and Michelin are headquartered abroad, with U.S. and other
subsidiaries.
---------------------------------------------------------------------------
\2\ For example, Toyota Motor Corporation is the Japanese
parent. Its U.S. sales arm is Toyota Motor Sales U.S.A., Inc. Its
public relations are under Toyota Motor North America, Inc. Toyota
Motor Manufacturing, North America, Inc. oversees manufacturing
companies in North America. Toyota Camrys and Avalons are assembled
by Toyota Motor Manufacturing, Kentucky, Inc. Toyota pickup trucks
are assembled by Toyota Motor Manufacturing, Indiana, Inc. Toyota
Motor Manufacturing Canada Inc. in Ontario assembles Corollas, which
are imported. Toyota's agent is Toyota Technical Center, U.S.A.,
Inc., which also submits certificates of conformity under the Clean
Air Act.
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Safety-related information could be maintained in a variety of
locations by a variety of corporate parents and subsidiaries. For
example, consider a recall in Venezuela conducted by a multinational
corporation based in Europe of vehicles that are substantially similar
to those that are assembled by a subsidiary in Mexico and imported by a
U.S. subsidiary. Information on that foreign recall ordinarily would
not have been directed to these assembling and importing subsidiaries.
To interpret the legislation as applying only to assemblers and
importers would be to eviscerate the TREAD Act, as it would amount to
acceptance of non-reporting. In enacting the TREAD Act, Congress did
not differentiate based on corporate structure and location. Congress
likewise did not expect us to do so.
Moreover, while the TREAD legislation was being formulated, Jacques
Nasser, then the CEO of Ford and as the representative of the
automobile industry, agreed that the industry would notify NHTSA of
recalls in foreign countries involving vehicles sold in the United
States. S. Rep. No. 106-423 at 2-3. Also, the Alliance member companies
(BMW, DaimlerChrysler, Fiat, Ford, General Motors, Isuzu, Mazda,
Mitsubishi, Nissan, Porsche, Toyota, Volkswagen, and Volvo) sent a
letter to NHTSA in which they committed to report to NHTSA their safety
recalls and other safety campaigns that are conducted in a foreign
country on a vehicle or component part that is also offered for sale in
the United States. They did not limit this commitment to recalls and
campaigns documented in the hands of corporate entities that are
assemblers of the products or U.S.-based subsidiaries that are
importers. In light of Mr. Nasser's statement and the Alliance members'
commitment, which did not suggest a narrow meaning of the word
manufacturer, there was no need for the Congress to more expressly
legislate NHTSA's authority.
The commenters' views are even narrower than, and not consistent
with, the definition of manufacturer in Section 30102(a)(5). Under that
section manufacturer means a person--(A) manufacturing or assembling
motor vehicles or equipment or (B) importing them for resale. To give
meaning to all words, particularly the word manufacturing, manufacturer
must be broader than mere assemblers and importers. The term
manufacturer includes an enterprise. See American Heritage Dictionary
(4th ed.)(manufacturer is ``a person, an enterprise, or an entity that
manufactures something.''). This is consistent with our longstanding
interpretation of the Vehicle Safety Act, which, in the course of
numerous amendments, Congress has not rejected. For example, under 49
U.S.C. 30115, a ``manufacturer'' must certify that the vehicle complies
with standards. Under our implementing regulations, the term
manufacturer covers more than the assembler or importer. Under 49 CFR
567.4(g)(1)(i), for example, if a vehicle is assembled by a corporation
that is controlled by another corporation that assumes responsibility
for conformity with the standards, the name of the controlling
corporation may be used as the manufacturer, even though it is not the
assembler. See NHTSA interpretation of October 13, 1981 regarding
PACCAR. This would allow, for example, parent Volkswagen of Germany to
certify vehicles made by a Mexican subsidiary and imported into the
U.S., DaimlerChrysler AG of Germany to certify M Class sport utility
vehicles (SUVs) assembled by a subsidiary in Alabama, and Isuzu Motors
Ltd. (of Japan) to certify Isuzu Rodeos assembled in Indiana. The
commenters' position on the meaning of manufacturer is inconsistent
with 49 CFR 567.4(g)(1)(i).
The enterprise view of a manufacturer is consistent with recent
case law. See Daimler-Benz Aktiengesellschaft v. Olson, 21 S.W. 3d 707;
2000 Tex. App. LEXIS 3985 (2000), cert. den. sub nom. DaimlerChrysler
v. Olson, --S.Ct.--, 70 U.S.L.W. 3707 (2002) (rejecting allegation by
Daimler-Benz that the court lacked jurisdiction over it because it is a
German corporation not doing business in Texas, and stating that
``[o]ur review of this evidence shows Daimler-Benz as a company devoted
to selling its cars worldwide. To achieve this goal, Daimler-Benz has
established subsidiaries in important markets around the globe * * *''
21 S.W.3d at 722-723).
Also, our approach to requiring information from multinational
organizations is consistent with case law in which in a multinational
corporate context, foreign parent, subsidiary and affiliate
corporations of a party corporation have been required to provide
information in litigation. E.g., In re Richardson-Merrell, Inc.
(Bendectin Product Liability Litigation), 97 F.R.D. 481 (S.D. Ohio
1983) (compelling discovery from multinational drug manufacturer's
domestic and foreign subsidiaries). Courts have applied a broad,
multifaceted view of control sufficient to compel responses to
discovery. For example, courts have held that subsidiary and affiliate
corporations responsible for the sale of products in the United States
have sufficient control over their parent's documents in order to be
compelled to produce them. See, Cooper Industries, Inc. v. British
Aerospace, Inc., 102 F.R.D. 918 (S.D. N.Y. 1984) (ordering defendant
that distributed and serviced airplanes in the U.S. and was a wholly
owned corporate affiliate of plane manufacturer British Aerospace
Public Limited Co. to produce documents believed to be in its British
affiliate's files); Afros S.p.A. v. Krauss-Maffei Corp., 113 F.R.D. 127
(D. Del. 1986) (ordering subsidiary to produce German parent
corporation's documents where subsidiary was a wholly owned sales arm
of parent and operating as exclusive seller of parent's products in the
U.S.); Ferber v. Sharp Electronics Corp., 1984 U.S. Dist. LEXIS 24861,
*8, 40 Fed. R. Serv. 2d 950 (S.D.N.Y. 1984) (requiring wholly owned
subsidiary of Japanese corporation that acted as parent's U.S.
distributor and seller with respect to calculators that allegedly
infringed patent to produce information held by parent); In re Uranium
Antitrust Litigation, 480 F. Supp. 1138, 1153 (N.D. Ill. 1979) (party
not required to have actual managerial power over the foreign
corporation, but rather that there be a close coordination between
them); see also, Camden Iron and Metal, Inc. v. Marubeni America Corp.,
138 F.R.D. 438 (D.N.J. 1991) (requiring U.S. based subsidiary
corporation to produce Japanese parent's documents where parent had
participated in negotiations over contract which became subject of
present litigation) citing, Gerling Int'l Ins Co. v. Commissioner of
Internal Revenue, 839 F.2d 131 (3d Cir. 1988); Uniden America Corp. v.
Ericsson Inc., 181 F.R.D. 302, 307 (M.D. N.C. 1998) (ordering party
corporation to produce responsive records of sister, non-party
corporation where companies were owned by same parent, which had
[[Page 45828]]
power over them, shared information regularly, and sister corporation
had provided party corporation documents to assist in present
litigation); Alimenta v. Anheuser-Busch Co., 99 F.R.D. 309, 313 (N.D.
Ga. 1983) (sister corporations acted Aas one'' in transaction);
Soletanche and Rodio, Inc. v. Brown & Lambrecht Earth Movers, Inc., 99
F.R.D. 269, 272 (N.D. Ill. 1983) (requiring production of foreign
parent's documents in patent infringement case where French, non-party,
corporate parent had potential benefit in wholly owned, American
subsidiary's winning offensive litigation); First Nat'l City Bank v.
I.R.S., 271 F.2d 616, 618 (2d Cir. 1959) (upholding subpoena requiring
New York City bank to produce records located in its office in Panama).
Finally, our approach to requiring a multinational corporate
enterprise to provide reports is consistent with the current regulatory
practice of some agencies regarding reporting on foreign and domestic
safety-related matters by multinational corporations. See, e.g., Food
and Drug Administration (FDA) rules regarding post-marketing reporting
of adverse events following FDA approval (21 CFR 314.80) and reporting
adverse events associated with investigational new drugs awaiting FDA
approval (21 CFR 312.32); EPA Office of Pesticide Programs, PRN 98-3
(www.epa.gov/opppmsd1/PR Notices/index).
To make our conclusions clear, we are defining ``manufacturer'' in
Section 579.4(c), where other terms used in the early warning rule are
defined.
3. Nexus to the Motor Vehicle Industry
Another frequent comment was that the proposal to include
subsidiaries and affiliates lacked the required nexus to the automotive
industry. The Alliance asserted that the proposal would impose
reporting requirements on unrelated subsidiaries (such as insurance
providers, financing providers, or car rental companies) as well as on
companies that have established limited business relationships with
each other. GM stated that it was unnecessary and unduly burdensome to
require reporting by some 1,000 unrelated subsidiary corporations that
apparently would be required to report consumer complaints or notices
of deaths or injuries if reported to an employee. Nissan characterized
the proposed inclusion of subsidiaries and affiliates as arbitrary and
capricious, and commented that the proposal would likely trigger
undesirable reporting requirements that were unintended by Congress.
We believe that the industry commenters have exaggerated the
burdens that the proposed reporting rule would place on them, their
subsidiaries, and their affiliates. We did not propose to require a
vehicle manufacturer to search the records of its automobile-financing
subsidiary for information responsive to the early warning
requirements. Also, we did not propose to require reporting by such
entities. However, if a vehicle manufacturer decided for any reason to
move the location where it receives or stores relevant vehicle safety-
related records, including its information management system, to such a
subsidiary or affiliate, then the early warning rule would require a
search of that subsidiary's or affiliate's records.
Thus, Honda Power Equipment Manufacturing, Inc., which makes lawn
mowers and related equipment, would not have to search its records or
report, even though it is a subsidiary of American Honda Motor Co.,
Inc. General Motors Corporation would not have to search the records of
General Motors Acceptance Corporation (GMAC) if the manufacturer in the
usual course of business does not keep early warning information in the
files of the automobile-financing subsidiary. However, if GM decided to
change its current practice and store relevant safety information in
the files of GMAC, GM would be required to search that subsidiary's
records when preparing its early warning reports.
To further clarify matters, we have decided to add a new Section
579.3(c), which specifies that, in obtaining the information to be
submitted under the early warning rule, manufacturers, including
parents, subsidiaries, and affiliates, need only review information and
systems where information responsive to Subpart C of Part 579 is kept
in the usual course of business. This clarification, which incorporates
language from Rule 34 of the Federal Rules of Civil Procedure, will
eliminate questions of unintended and unnecessary burdens of reporting
on affiliates and subsidiaries that are not involved in the areas for
which reporting is required.
4. Duplicate Reporting
A number of commenters complained that the proposed rule would
likely result in duplicate reporting of the same events by more than
one entity and thus and cause the early warning information we receive
to be inaccurate. As we made clear in the NPRM, duplicate reporting was
not required. We proposed to allow reporting by either fabricating
manufacturers or importers, so long as the multinational corporation
assures the reporting entity is provided with information in sufficient
time for the reporting entity to submit it NHTSA in a timely manner.
See 66 FR at 66194 and proposed 49 CFR Section 579.3(b). ``In the case
of any report required under this part, compliance by either the
fabricating manufacturer or the importer of the motor vehicle or motor
vehicle equipment shall be considered compliance by both.'' We thought
that this provision would eliminate duplicate reporting from separate
elements of a multinational corporation.
The comments did not discuss this provision directly, but instead,
addressed the subject of duplicate reporting more generally.
Nevertheless, we have considered this provision further in light of
those comments. We believe that there was considerable flexibility
under the proposed rule. We address situations involving complex
structures and multinational corporations below, to explain that
duplicate reporting is not required and to provide guidance on allowed
reporting mechanisms.
Some situations involve joint ventures and production agreements.
In a joint venture, two manufacturers of motor vehicles establish a
separate corporation whose products each of the manufacturers sells
under its own brand name. In the production agreement, one manufacturer
agrees to produce vehicles for another under the second manufacturer's
brand name. An example of a joint venture is New United Motor
Manufacturing Inc. (NUMMI), owned jointly by GM and Toyota, which
produced the Toyota Corolla and the Geo Prizm. Examples of production
agreements are those between Ford and Nissan in which Ford produced the
Nissan Quest as well as the Mercury Villager, and between Isuzu and
Honda, under which Isuzu produced the Isuzu Rodeo as well as the Honda
Passport. A term used for a vehicle such as the Passport is a ``re-
badged vehicle.'' In either case, the agency's certification regulation
requires NUMMI and Ford or Isuzu, as the ``actual assembler of the
vehicle,'' to certify compliance of the vehicles they fabricate, even
if sold by another company. See 49 CFR 567.4(g)(1).
As indicated in the Alliance's comment, NUMMI is strictly a
fabricator, with no sales outlets or repair facilities of its own.
Instead, its products are sold through Toyota and Chevrolet
dealerships. The Alliance feared that the proposed rule might oblige
Toyota to report on claims and complaints received by GM about GM
vehicles, and GM to report on those received by Toyota about Toyota
vehicles. Such duplicate reporting is not required
[[Page 45829]]
under the rule. Reports may be submitted by Toyota as to Toyotas, and
GM as to Chevrolets or Geos. Alternatively, Toyota, GM, or NUMMI may
report as to all such vehicles.
The situation is similar with respect to vehicles manufactured
under production agreements. For example, assume that Isuzu received
consumer complaints about a brake problem in Rodeo vehicles and Honda
received complaints about the problem in Passport vehicles. Both Isuzu
and Honda may report to us the information that they possess about the
vehicles under their own brand names, or the assembler (Isuzu) may
report fully for both companies. Honda is not excused from reporting
the complaint and other relevant information in its information systems
about the Passport on the theory that Honda is not the assembler or
importer of the vehicles.
Although the likelihood is that the brand name owners, rather than
the fabricator (if other than a brand name owner), will receive
consumer contacts about these vehicles, and that the tire brand name
owner will be contacted rather than the tire fabricator, we have
decided to add a provision to Section 579.3(b), similar to Section
573.3(b), that permits an election between the fabricator and the brand
name owner with respect to early warning reporting for vehicles and
equipment. We are adding a definition of ``brand name owner'' to the
Terminology section of the rule, to mean ``a person that markets a
motor vehicle or motor vehicle equipment under its own trade name
whether or not it is the fabricator or importer of the vehicle.'' (This
is similar to the definition of ``new tire brand name owner'' in 49 CFR
574.3(c)(3)). If the fabricator is the reporting entity, it must
identify each company that is a brand name owner covered by the report
(see new Section 579.28(h)), and every identified company must provide
its information to the fabricator in a sufficiently timely fashion to
permit the reporting company to file timely and accurate reports. The
obverse is also true; i.e., if a brand name owner is reporting for
itself, it must identify each fabricating manufacturer covered by the
report.
Another scenario involves a situation where the domestic subsidiary
of a foreign corporation assembles a vehicle that also is assembled
abroad and imported. For example, in some years, Toyota manufactured
some Corolla vehicles in Japan that it exported to the United States
and an American subsidiary manufactured other Corollas in the United
States. Under our rule, due to the parent-subsidiary relationship, each
company may report early warning information to us separately without
duplication, or one or the other may report on behalf of both (we would
prefer a combined report, regardless of which entity actually submits
it).
The next such situation involves foreign subsidiaries of U.S.
corporations that manufacture vehicles that are sold in the U.S. For
example, GM owns Saab of Sweden. Ford owns Volvo, Jaguar, Land Rover,
and Aston Martin. This rule does not regulate corporate structure, and
it does not matter whether the U.S. importer of these brands is a
subsidiary of the foreign corporation or of the U.S. parent (or some
other entity). We understand that consumer contacts about U.S.
activities and events involving these vehicles are reported to
addressees in the United States, whereas communications about foreign
events involving the same or substantially similar vehicles are sent to
addressees abroad. We had assumed that ordinarily the domestic parent
or domestic subsidiary or subsidiaries (separate ones for, e.g., Volvo
and Jaguar) would have the records about the domestic activities and
events and would report to us about both the domestic and the foreign
events after having obtained relevant information from the records
maintained by the foreign entity. We are not requiring duplicate
reports and are not requiring separate reports from the foreign
entities, either limited to the foreign events, or including both
foreign and domestic events. Moreover, the time may come when brands
such as these are assembled by new subsidiaries in foreign countries,
which would add another entity to the mix. We have decided to permit an
election for parents and subsidiaries, similar to that proposed for
fabricators and importers in proposed Section 579.3, and subject to the
same provisos with respect to timeliness and completeness of reporting.
Finally, we consider foreign vehicles that are not exported to the
U.S. but that are substantially similar to vehicles sold in the U.S.
For example, Ford of the U.K. and Vauxhall Motor Co. Ltd. (owned by GM)
\3\ manufacture cars for the U.K. market. Although at present, these
cars generally are not exported to the U.S., some of the U.K. models
are substantially similar to domestic models (our decision with respect
to defining ``substantially similar'' is discussed below). Assume, for
example, the first-generation Mondeo, which was manufactured and sold
in the U.K., is substantially similar to the Ford Contour and Mercury
Mystique, which recently were sold in the U.S. Likewise, assume that
the U.K. Vauxhall Omega and the German Opel Omega are substantially
similar to the Cadillac Catera, which GM previously sold in the U.S.
The assembler is a foreign company. Information about the Mondeo in the
files of Ford of the U.K., and information about the Omega in the files
of Vauxhall or Opel, is likely in Europe. There is no importer of the
vehicle into the U.S. Nonetheless, we would allow Ford (U.S.) \4\ and
GM (U.S.) to obtain and report information about covered claims for
deaths in the Mondeo or the Omega from the files in the U.K. or
Germany. If there were such full reporting, we would not want duplicate
reporting by a foreign company. To address this scenario, we will allow
reporting of claims involving deaths in foreign countries by either the
fabricating manufacturer, the importer, the brand name owner, or a
parent or United States subsidiary of such fabricator, importer or
brand name owner of the motor vehicle or motor vehicle equipment, and
that shall be considered compliance by all persons. Thus, Section
579.3(b) will read as follows:
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\3\ The GM website (www.gm.com) under ``contact us'' refers in
its pull down menu to Vauxhalls, as well as Holdens (manufactured in
Australia) and Saabs.
\4\ Ford's website (www.ford.com) reflects its world wide
operations. It has a link that states ``find your local website from
over 120 countries.''
(b) In the case of any report required under subpart C of this
part, compliance by the fabricating manufacturer, the importer, the
brand name owner, or a parent or United States subsidiary of such
fabricator, importer, or brand name owner of the motor vehicle or
motor vehicle equipment shall be considered compliance by all
---------------------------------------------------------------------------
persons.
We believe that the modifications we are announcing today with
respect to the definition of manufacturer will resolve any other
potential problems related to duplicate reporting and will facilitate
reporting in a manner that avoids duplicate reporting.
5. Suggestion to Require a ``control relationship'' Between
Manufacturers and Covered Subsidiaries and Affiliates
Several commenters (including the Alliance, Nissan, Honda, Bendix,
and MEMA) suggested that it was not appropriate to impose reporting
requirements on corporate affiliates or impute to manufacturer
information in the possession of affiliates over whom the manufacturer
does not have a controlling interest. More constructively, Harley-
Davidson stated that it would strive to accumulate early
[[Page 45830]]
warning reporting information from companies it does not control and
would report such information if it learned of it, but might not be
able to compel it from such entities.
The manufacturers did not provide concrete examples. Multinational
vehicle manufacturers, in general, own all or substantial parts of
vehicle manufacturing, importing, and sales subsidiaries. For example,
Nissan Motor Co., Ltd. (Japan) owns one hundred percent of Nissan North
America, Inc. Honda Motor Co., Ltd. owns American Honda Motor Co.,
Inc., a subsidiary of which, Honda of America Mfg., Inc., assembles
Hondas in Marysville, Ohio. Volkswagen AG owns VW of America.
DaimlerChrysler AG owns DaimlerChrysler Corp. (manufacturer of
Chrysler, Dodge, and Jeep vehicles), Mercedes-Benz USA, Inc. (importer
of Mercedes-Benz passenger cars, formerly known as Mercedes-Benz of
North America, Inc.), and Mercedes-Benz U.S. International, Inc.
(assembler of M Class SUVs in Alabama). However, there are other
situations where there is partial ownership. For example, Ford owns a
substantial portion of Mazda Motor Corp. and DaimlerChrysler A.G. of
Mitsubishi Motors Corp.
MEMA proposed a ``bright line test'' in which reporting
requirements would be imposed only in situations in which the
manufacturer has an equity ownership of at least 50 percent in the
affiliate or subsidiary. MEMA did not state the basis for its proposed
``50% ownership'' test. We do not see any reason to adopt a ``50%
ownership'' test in the context of early warning reporting. It is
entirely possible to for one entity effectively to control another with
an ownership share of far less than 50 percent. It is too difficult to
generalize as to the percentage of ownership that is required for the
ability to control. Moreover, there may be multiple corporations above
one another in a hierarchy and the multinational corporation may not be
structured in a strictly vertical mode; there may be horizontal
relationships. The concept of control is adequately addressed by the
terms we used. For example, a parent corporation is defined in Black's
Law Dictionary ``as a corporation that has a controlling interest in
another corporation.'' A subsidiary corporation is defined as a
``corporation in which the parent corporation has a controlling
share.'' Ibid. An affiliate of or person affiliated with a specified
person means a person that directly, or indirectly through one or more
intermediates, controls or is controlled by, or is under common control
with, the person specified. Ordinarily, the persons are corporations.
Securities and Exchange Commission regulation 17 CFR 230.405; see also,
17 CFR 240.10b-18(a)(1). We have adopted this definition.
To the extent that further interpretation of these matters is
needed, we will address them in the context of concrete facts in the
exercise of program administration and discretion.
As indicated earlier in this preamble, we have decided to permit
joint venture manufacturers, rebadging manufacturers, and others to
elect a reporter. As a practical matter, this flexible approach will
enable reporting requirements to be met without resolution of control
issues. Based on our experience with reporting of noncompliances and
defects under section 573.3, we believe that this approach is workable.
6. Proposed Application to Outside Legal Counsel
We proposed in the NPRM to include within the term manufacturer
``any legal counsel retained by the manufacturer.'' See proposed
Section 579.4(a). However, we did not propose to require reporting by
outside counsel to manufacturers. See 66 FR 66194.
Our proposal to include legal counsel in the definition resulted
primarily from our perception that certain ``minimum specificity''
information that is a precondition to reporting claims for death or
injury may not be found in manufacturers' information systems. Initial
claims may be very limited in detail, and it is possible that claims
will not be ``perfected'' until outside counsel have become involved.
To report, manufacturers will need information necessary to satisfy our
``minimum specificity'' requirement, such as the model year of the
vehicle involved in a claim. Manufacturers may need to obtain this
factual information from their outside counsel after those counsel
receive that information.
The provision of this type of fundamental information would not
violate the attorney-client privilege or present other ethical dilemmas
to outside counsel. We are seeking only basic factual allegations.
Many commenters objected to our proposal to include retained legal
counsel in the definition of manufacturer, and none supported it. The
negative commenters included the Alliance, Nissan, Ford, GM, AIAM,
Webb, Harley-Davidson, and RMA. Essentially, they asserted that
inclusion of legal counsel in the definition was unnecessary because,
in virtually all cases, basic relevant information known to outside
counsel was made known to them by the manufacturer that retained them;
that it would be unduly burdensome for outside counsel to be required
to search their records periodically for such information; and that the
requirement to divulge such information might pose ethical problems or
conflicts of interest for lawyers or otherwise violate proscriptions
against divulging privileged information or require disclosure of
attorney's work product. Specifically, Nissan observed that, if the
agency is concerned about abuse of claims of privilege, it could deal
with this potential problem by cautioning against improper privilege
claims rather than by redefining the term ``manufacturer.'' Ford
requested that the term manufacturer be modified to exclude documents
contained in litigation files.
We do not agree that the proposal would impose the sorts of burdens
referred to by the commenters. However, to clarify the matter, we are
adding a sentence to Section 579.28(d) to specify that in situations
involving a claim for death or injury where the manufacturer does not
possess all the information required for ``minimum specificity,'' and
the matter is being handled by outside counsel, the manufacturer must
attempt to obtain the missing information from the outside counsel. In
light of this adjustment, we are eliminating outside counsel from the
definition of manufacturer contained in Section 579.4(c). Where the
corporate manufacturer has the information, which the Alliance claims
is virtually always the case, there will be no obligation to inquire
and no burden. In view of this modification, we believe that it is
unnecessary to address separately the concerns raised by Nissan and
Ford.
7. Constructive Notice of Information Received by Agents
In the preamble to the NPRM, we stated that we proposed to deem
information that is received initially by representatives of
manufacturers (such as their registered agents and outside counsel) to
be information in the constructive possession of the manufacturer, and
to require each manufacturer to ensure that entities it has the ability
to control furnish it with relevant early warning information so that
the manufacturer could make a complete and timely report to NHTSA. We
also stated that we did not propose to require the representatives to
report directly to NHTSA. See 66 FR 66194; see also id. at 66213--
66214. However, while we addressed this subject in the
[[Page 45831]]
preamble, it did not appear in the proposed regulatory text.
Many commenters challenged our statements regarding constructive
possession, arguing that we lack statutory authority to interpret the
term ``possession'' in 49 U.S.C. 30166(m)(4)(B) and claiming that they
cannot require entities that they do not control to provide them with
information. We disagree. As discussed above, by virtue of our
authority to conduct substantive rulemaking to implement the early
warning reporting requirements, we are empowered to interpret statutory
terms and promulgate a rule containing our interpretation.
The Vehicle Safety Act itself provides at Section 30164 for foreign
manufacturers to appoint agents for the service of notices and process
in administrative and judicial proceedings, and specifically states
that ``service on the agent is deemed to be service on the
manufacturer.'' Id. at 30164(b). Likewise, a common requirement under
state law is the appointment of registered agents, and corporations are
deemed to be served upon service on the registered agent. Therefore, we
have concluded that, as in Section 30164(b), it is appropriate to
impute the information contained in such claims to the manufacturer who
is served via the appointed agent. Accordingly, in this final rule, we
are adding a specification (Section 579.28(e)) stating that receipt of
a claim by an agent of a manufacturer registered under State law or
designated under the Vehicle Safety Act by a manufacturer offering
vehicles or equipment for import shall be deemed received by the
manufacturer. However, upon further consideration, we have concluded
that it is not necessary to refer to the concept of constructive
possession in the terminology or application sections of this rule. The
provisions of this rule that require reporting of information in the
possession of manufacturers and their subsidiaries, parents, and
affiliates with respect to vehicles and equipment that they offer for
sale in the United States and foreign vehicles or equipment that are
substantially similar to such vehicles or equipment will suffice to
ensure that we receive relevant early warning information from
appropriate sources.
B. Manufacturers of Motor Vehicles
The TREAD Act provides for the agency to require manufacturers of
motor vehicles \5\ to submit information that may assist in the
identification of safety-related defects. We must decide which
manufacturers of motor vehicles would be required to submit reports
under this rule, and whether different reporting requirements should
apply to various categories of manufacturers. Section 30166(m)(3) does
not exempt any manufacturer of motor vehicles from its coverage. On the
other hand, it provides substantial discretion to the agency. The word
``may'' is used at several points in the statute. In addition, the
agency's ability to use the information submitted is a statutory
concern.
---------------------------------------------------------------------------
\5\ The term ``motor vehicle'' is a broad one. The statutory
definition of ``motor vehicle'' (49 U.S.C. 30102(a)(6)) has been the
subject of numerous interpretations since 1966.
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One of the threshold questions in this rulemaking is whether the
agency should exercise its discretion to defer the imposition of some
or all potential early warning reporting requirements on some classes
of manufacturers. The early warning regulation will be a new
regulation, and inevitably the agency and regulated entities will face
some issues in implementing it. It would be counterproductive to
require the submission of more information than we could beneficially
review or to impose impracticable requirements, particularly on small
manufacturers. We have concluded that we should phase in the early
warning reporting requirements and that, for the most part, it would be
appropriate to focus first on larger volume manufacturers and on
information regarding incidents and activities in the United States, as
contrasted to those occurring in foreign countries.
Vehicles produced in small quantities have a smaller overall impact
upon safety than large production vehicles, as we have frequently noted
in providing temporary exemptions from one of more of the Federal motor
vehicle safety standards under 49 U.S.C. 30113. Although we would not
expect the volume of reports from any individual small volume
manufacturer to be overwhelming if we were to require comprehensive
reporting by smaller manufacturers, there would be some burden on them.
More important, our interactions with, and review of submissions by,
the large number of small manufacturers would divert the agency's
resources from reports submitted by high volume manufacturers involving
potential safety defects that could affect a far greater number of
vehicles and thus have a greater impact on safety.
The final rule excludes from most of the reporting requirements any
vehicle manufacturer that manufactures for sale, offers for sale,
imports, or sells, in the United States, fewer than 500 vehicles of
each specified category in the year of the reporting period and in each
of the two calendar years preceding the reporting period. This
exclusion will apply to most manufacturers of multistage vehicles and
alterers since the vast majority of them manufacture or sell fewer than
500 vehicles annually.
We are also excluding registered importers (RIs) of vehicles not
originally manufactured to comply with Federal motor vehicle safety
standards from most of the reporting requirements. RIs ordinarily would
not have information that would be useful because most import limited
numbers of vehicles, most of which are manufactured by companies who
generally report to us, and the owners of most of these vehicles
probably would not report problems to the RI.
However, these small-volume manufacturers and RIs are not exempt
from the requirements, addressed below, to report to us certain
specified information regarding incidents involving death(s) occurring
in the United States that are identified in claims against and received
by the manufacturer or that are identified in notices sent to the
manufacturer where the notice alleges or proves that a death was caused
by a possible defect in the manufacturer's vehicle, together with
information on deaths occurring in foreign countries that are
identified in claims against the manufacturer involving a vehicle that
is identical or substantially similar to a vehicle that the
manufacturer has offered for sale in the United States. With respect to
all such reported deaths, all manufacturers will have to provide
certain information regarding the underlying incident, as described in
greater detail below. All manufacturers will also have to provide
copies of documents related to customer satisfaction campaigns,
consumer advisories, recalls, and other safety activities under new
Section 579.5. As discussed in Section III.A.4 above, duplicate
reporting is not required. The commenters on the NPRM did not object to
the concept of limited reporting by small-volume vehicle manufacturers.
For those motor vehicle manufacturers that are not excluded from
full reporting based on low levels of sales in the United States, we
are establishing separate reporting requirements based on the category
of vehicle produced. We proposed five categories of vehicles: light
vehicles, medium-heavy vehicles, buses, motorcycles, and trailers. In
the final rule, we are adopting four; the final rule combines the
proposed categories of
[[Page 45832]]
medium-heavy vehicles and buses into one category. Each category has
components and systems that distinguish it from the other three
categories, and which may develop safety-related problems unique to
that category. Therefore, we shall require different information
regarding each category of vehicle, which will help to reduce the
burdensomeness of the rule.
Under the rule, a light vehicle is any motor vehicle, except a bus,
trailer, or motorcycle, with a gross vehicle weight rating (GVWR) of
10,000 lbs. or less. Medium-heavy vehicles include trucks and
multipurpose passenger vehicles with a GVWR over 10,000 lbs., and buses
regardless of GVWR (including school buses). Trailers are separately
categorized regardless of GVWR. Motorcycles include any two- or three-
wheeled vehicle meeting the definition of motorcycle in 49 CFR
571.3(b).
We asked for comments on whether an annual aggregate production,
importation, or sales of 500 vehicles in the United States is an
appropriate figure upon which to base this distinction, whether a
manufacturer's eligibility for these lesser reporting requirements
should be determined based upon its production in the two calendar
years preceding the report or whether a shorter, longer, or different
period would be appropriate, and whether small-volume vehicle
manufacturers should be required to provide other data and information
in addition to that relating to deaths.
RVIA commented that recreational vehicle (RV) manufacturers should
be exempt from all early warning reporting, or, at most, only those
requirements that are adopted for manufacturers of fewer than 500 motor
vehicles. NTEA, Gillig, and WASTEC commented that the threshold should
be 10,000 vehicles per year, the same as that governing eligibility to
apply for temporary exemptions under Part 555 on grounds that
compliance would cause substantial economic hardship, which they did
not demonstrate, or, alternatively, 2,500 vehicles per year, the same
as that governing eligibility to apply under Part 555 for other kinds
of temporary exemptions. The rationale for these suggestions is that
many companies producing multi-stage trucks and RVs in quantities
greater than 500 are nevertheless ``small businesses'' by the criteria
of the Small Business Administration (SBA) (13 CFR 121.201 (2000)).
We have considered these comments and have concluded that the 500
units is an appropriate demarcation point between larger and smaller
manufacturers. We recognize that some manufacturers of more than 500
vehicles will be ``small businesses'' under the SBA criteria. However,
that does not in itself provide a basis for exempting them from the
more comprehensive reporting requirements. We have conducted
investigations into alleged defects in products manufactured by
relatively small businesses that have led to safety recalls and we
believe that it is appropriate to obtain full early warning information
from companies producing 500 or more vehicles. If experience shows that
we do not get valuable information from relatively small vehicle
manufacturers, we can and will adjust the threshold in the future.
We also received comments on our proposed five categories of
vehicles. Utilimaster commented that it, like other delivery van
producers, manufactures vehicles in both the over and under 10,000 lb.
GVWR categories. It commented that ``commercial delivery vans under
10,000 lbs. GVWR have little in common with cars, sport utility
vehicles and pickup trucks,'' and should not be in the same reporting
category as these vehicles. It believed that if the final rule is
adopted as proposed, it would be difficult to try to conform the
company's internal records systems and reporting obligations to the
discrete systems and component codes and differences in parts specified
in the light and medium-heavy reporting categories. It argued that
``there should be only one set of failure codes and related numerical
reporting.''
The use of GVWR to delineate the applicability of requirements
adopted by NHTSA, other Federal agencies, and state governments is a
common practice that has stood the test of time. In any event, the
coding of systems and components and related numerical reporting for
light and medium-heavy vehicles are very similar, as is discussed
below. In our view, this similarity will avoid, or at least minimize,
any problems that companies such as Utilimaster might have had.
RVIA also argued that reporting should be limited to the chassis
portion of a RV and exclude living quarters. We disagree. If we adopted
such a limitation, fires that arose in the living quarters would not be
reported. We note that the Vehicle Safety Act provides that ``motor
vehicle safety'' includes ``nonoperational safety of a motor vehicle.''
49 U.S.C. 30102(a)(8).
C. Manufacturers of Motor Vehicle Equipment
The TREAD Act also provides for the agency to require manufacturers
of motor vehicle equipment to submit early warning reporting
information that may assist in the identification of safety-related
defects. ``Motor vehicle equipment'' is defined in 49 U.S.C.
30102(a)(7), and consists of ``original equipment'' (OE) and
``replacement equipment.'' These two terms are currently defined in 49
CFR 579.4. We are not changing the definitions, but we are simplifying
the previous language in new Section 579.4(c) to make it more readable.
1. Original Equipment
There are approximately 10,000 to 14,000 individual items of OE in
a contemporary passenger car. Some are fabricated by the vehicle
manufacturer, some by independent parts manufacturers, and some parts
are incorporated into systems or modules assembled by various
suppliers. There is a growing trend to packaging individual parts into
a single unit, or module. For example, a steering wheel assembly may
include an air bag, horn control, turn signal control, wiper control,
ignition switch, cruise control, lighting controls, as well as
associated wiring. Many of these units are assembled by a supplier,
often with components from various manufacturers. Each of these
fabricators or assemblers is also a manufacturer of motor vehicle
equipment.
When a component or module installed as OE on a vehicle fails,
generally vehicle owners will complain or file a claim with the entity
that has manufactured and warranted the vehicle, rather than the
assembler of the module or the manufacturers of the individual parts,
who in most instances are unknown to the vehicle owner. In view of
this, in their comments to the ANPRM, the Alliance, Ford, and AIAM
specifically supported exclusion of OE manufacturers (OEMs) from early
warning reporting requirements. OEMs, however, are not exempt from
defect reporting requirements. Pursuant to 49 CFR 573.3(f), if an OEM
sells an item of OE to more than one vehicle manufacturer and a defect
or noncompliance is decided to exist in that OE, the OEM is required to
notify us (as are the manufacturers of the vehicles in which the OE is
installed). If the defective OE is used in the vehicles of only one
vehicle manufacturer, the OEM may notify us on behalf of both itself
and the vehicle manufacturer (Section 573.3(e)) in either case, the OEM
may also be the party remedying the safety defect or the
noncompliance). Thus, OEMs can and do make determinations that OE
contains safety-related defects, and they will have some information of
the type that the TREAD Act authorizes us to
[[Page 45833]]
require, such as claims alleging failures of their products. For this
reason, we did not propose to totally exempt OEMs from early warning
reporting.
We tentatively decided for the NPRM that most meaningful
information about possible defects is more likely to come to the
attention of the vehicle manufacturer earlier than it would to the OEM.
However, we wanted to be certain that we obtain information regarding
deaths attributed to OE. Accordingly, in the NPRM, we proposed that
OEMs be exempt from all reporting requirements regarding OE they
manufacture, except for reporting to us regarding deaths in the same
manner as small volume vehicle manufacturers, discussed above. Of
course, the vehicle manufacturer would be required to report fully in
its capacity as a vehicle manufacturer, even if the vehicle
manufacturer believed that the problem was the responsibility of the
OEM.
NTEA suggested that, in the case of work-related equipment that is
installed as original equipment, defects or alleged defects only be
reported if they are ``germane to the operation of the motor vehicle.''
It gave, as an example, defects occurring in the operation or design of
work-producing equipment such as a ladder or crane. Because such a
defect ``has nothing to do with the safe operation of the vehicle,'' it
should not have to be reported to NHTSA.'' We disagree. As noted above,
the statutory term ``motor vehicle safety'' includes ``nonoperational
safety of a motor vehicle.'' There are certain work-performing items of
equipment whose failure can have serious safety consequences. For
example, a dump truck's dump body hydraulic control valve may
malfunction while the truck is moving and the dump body move up,
scattering materials on the roadway and blocking the driver's rearward
view of the road. Such a malfunction could lead to a death, yet under
the NTEA approach, it would not be reported to NHTSA because the
control valve does not relate to the operation of the dump truck as a
motor vehicle. Also, a falling crane could hit a vehicle or create a
dangerous distraction. It is not possible to define for the many types
of specialty trucks and vehicles what work-performing equipment should
not be included; any attempt to exclude an item of equipment will
inevitably lead to confusion as to what should be reported. In any
event, in view of the limited reporting required, NTEA has not shown
that including the rule would impose much of a burden.
2. Replacement Equipment
Replacement equipment comprises an even broader universe of parts
than OE. It includes all motor vehicle equipment other than OE. Not
only does the term have the literal meaning of equipment that is
intended to replace OE, it also includes accessory equipment and ``off-
vehicle equipment'' that is not part of a motor vehicle, such as jacks
and most child restraints. Manufacturers of replacement equipment are
within the scope of the early warning reporting provisions of the
statute.
Some replacement equipment items are critically important from a
safety perspective, while others have less of a safety nexus. Child
restraints and tires are critical safety items. Therefore, we proposed
that all manufacturers of child restraints and tires be required to
provide the full range of information and documents proposed.
There is a large number of manufacturers of other types of
replacement equipment. Much of this equipment is imported by or for
auto parts houses such as J.C. Whitney, retailers such as Pep Boys, or
general merchandisers. An importer for resale is considered a
manufacturer under the statute. See 49 U.S.C. 30102(a)(5)(B). A large
universe of entities would be subject to multiple requirements if we
were to fully apply early warning reporting requirements to all
fabricators and importers of replacement equipment.
Therefore, at least for purposes of this initial rulemaking, we
proposed that, as with smaller volume vehicle manufacturers and
original equipment manufacturers, manufacturers of other types of
replacement equipment only be required to report to us claims regarding
deaths and in notices regarding deaths allegedly due to possible
defects in their products. We are adopting our proposal. However, we
may revisit these limitations under our periodic review of the rule.
In the preamble to the NPRM, we cited retroreflective motorcycle
rider apparel as an example of off-road motor vehicle equipment. The
Motorcycle Rider Foundation posted a notice on its website urging
readers to ``Fight NHTSA's Bid For Clothing Control!,'' claiming that
``NHTSA has no statutory authority for this power grab.'' Contrary to
the Foundation's claim, ``motor vehicle equipment'' has been defined by
statute (currently 49 U.S.C. 30102(a)(7)(C)) since 1966 to include
``any * * * apparel * * * that is not a * * * part * * * of a motor
vehicle and is * * * intended to be used only to safeguard * * *
highway users against risk of accident, injury, or death.'' We have
not, and we do not intend to, prescribe standards or requirements for
motorcycle apparel other than protective headgear, which has long been
subject to FMVSS No. 218. The proposed rule would not, and the final
rule does not, control motorcycle clothing. It is extremely unlikely
that any such apparel would be the subject of a claim involving a
death.
3. Tires
Tires, of course, are essential items of motor vehicle equipment,
and tire manufacturers have the duty to conduct notification and remedy
campaigns and to address defective or noncompliant tires, whether sold
in the aftermarket or installed on new vehicles (see current 49 CFR
579.5(b)). Tire brand name owners (e.g., house brands) are also
considered manufacturers (49 U.S.C. 30102(b)(1)(E)) and have the same
defect and noncompliance reporting requirements as the actual
fabricators of the tires (49 CFR 573.3(d)). We proposed that tire brand
name owners be required to report, as well as tire manufacturers.
RMA asked that the final rule clarify that, where the tire brand
owner is not the fabricating manufacturer, only the tire brand owner
need report. We concur with this suggestion; the type of information
and data we are seeking for early warning purposes is not likely to be
received by the fabricating manufacturer when tires are marketed under
the name of the tire brand owner. Accordingly, as adopted, Section
579.3(b) reads in pertinent part: ``In the case of any report required
under this part, compliance by either the fabricating manufacturer * *
* or brand name owner of the * * * motor vehicle equipment shall be
considered compliance by all persons.''
4. Definition of ``Equipment''
We proposed to retain the existing definitions of Part 579 for
``original equipment'' and ``replacement equipment,'' in slightly
edited form. These definitions of original equipment and replacement
equipment are based on 49 CFR 579.4 (as it appears in 49 CFR Parts 400-
999, revised as of October 1, 2001) and are many years old. We are
adopting them as proposed.
The definition of ``original equipment'' includes ``equipment
installed by the dealer or distributor with the express authorization
of the motor vehicle manufacturer.'' Harley-Davidson observed that it
has more than 2,000 suppliers and stated some items manufactured as
original equipment or replacement parts for its motorcycles may find
their way into the production
[[Page 45834]]
of other motorcycle brands or the general stream of commerce. Harley-
Davidson also observed that its catalog runs several hundred pages with
thousands of separate replacement and custom parts. It expressed the
belief that NHTSA would not want production reports on each and every
one of these, and that it would not make sense to submit reports on
these items unless claims involving them were actually received.
Accordingly, the comment recommended that a manufacturer not be
required to list all production in its reports, or report at all except
when a reportable incident has occurred.
We believe that the proposed rule was clear. Any manufacturer of
motorcycles, original motorcycle equipment, and motorcycle replacement
equipment is responsible for reporting incidents involving deaths based
on claims it receives and on notices it receives alleging a defect in
its product. But it is only with respect to motorcycles themselves that
the manufacturer is responsible for reporting additional and specific
categories of information to NHTSA under Section 579.23. Also, the
motorcycle manufacturer is not responsible for reporting regarding
equipment that is not original equipment, that is to say, equipment
installed by a dealer without the manufacturer's express authorization.
With regard to replacement equipment, under the rule, manufacturers
of replacement equipment are required to report any claims or notices
of death allegedly due to a defect. In its role as a manufacturer of
replacement equipment, Harley-Davidson would not have to report an
incident unless it receives a claim or notice. See Section 579.27.
IV. Information That Must Be Reported
Section 30166(m)(3)(A) provides for NHTSA to require manufacturers
to report information which concerns data on ``claims submitted to the
manufacturer for serious injuries (including death) and aggregate
statistical data on property damage from alleged defects in a motor
vehicle or in motor vehicle equipment,'' and on ``customer satisfaction
campaigns, consumer advisories, recalls or other activity involving the
repair or replacement of motor vehicles or items of motor vehicle
equipment.'' Section 30166(m)(3)(B) authorizes us to require
manufacturers to report other ``such information'' that may assist in
the identification of safety defects. Finally, Section 30166(m)(3)(C)
provides for reporting of incidents, of which the manufacturer receives
actual notice, involving deaths or serious injuries which are alleged
or proven to have been caused by a possible defect in the
manufacturer's vehicle or equipment in the United States, or in a
foreign country when the possible defect is in a vehicle or equipment
identical or substantially similar to that sold in the United States.
A. Production Information
For each reporting period, we proposed to require manufacturers
that manufactured for sale, offered for sale, imported, or sold in the
United States 500 or more vehicles of specified categories, and all
manufacturers of child restraint systems and tires, to provide
information on the volume of production of their products. Production
numbers are needed because the agency's trend analyses frequently are
normalized to rates, such as the number of claims per unit of
production. We proposed to require these manufacturers to submit the
following information with respect to each model and model year of
vehicle manufactured in the calendar year of the reporting period and
the nine model years prior to the earliest model year of the reporting
period, including models no longer in production: the manufacturer's
name, the quarterly reporting period, the make, the model, the model
year, the current model year production to the end of the reporting
period, and the total model year production for all model years for
which production has ceased. See 66 FR 66194.
Under the NPRM, for each model of vehicles that are manufactured
with more than one type of fuel system, and for each model of medium-
heavy vehicles with more than one type of service brake system, the
information required by this subsection would have been reported
separately. In the final rule, this distinction between types of fuel
systems has not been adopted for light vehicles, and applies only to
medium-heavy vehicles including buses. The final rule distinguishes
between gasoline powered, diesel powered, and other. The distinction
between types of service brake systems (hydraulic and air) applies to
medium-heavy vehicles including buses, and trailers.
In its analysis of potential defects, ODI has found it useful to
compare problems in similar types of vehicles. The reporting category
of ``light vehicles'' covers more types of vehicles than are defined in
49 CFR 571.3(b). For example, ``light vehicle'' includes passenger
cars, various types of multipurpose passenger vehicles (e.g., minivans,
vans, SUVs), and some trucks. Therefore, we have concluded that, in
addition to identifying the make and model of a vehicle, manufacturers
of light vehicles must also indicate the type classification of the
vehicle as defined in Section 571.3(b) (i.e., passenger car,
multipurpose passenger vehicle, or truck) that appears on the vehicle's
label pursuant to Section 567.4(g)(7) certifying compliance with all
applicable FMVSS. Manufacturers would also report production data for
incomplete light vehicles. An ``incomplete light vehicle'' is an
incomplete vehicle as defined by Section 568.3 which, when completed,
will be a light vehicle. For similar reasons, we are requiring each
light vehicle manufacturer to identify the ``platform'' of the vehicle,
using its own nomenclature, as discussed in Section IV.H.1.
Similar considerations apply to child restraint systems. Therefore,
we are requiring manufacturers of those products to indicate the
``type'' of child restraint system in their production reports. We are
establishing three separate categories, as follows: ``Rear-facing
infant seat'' means a child restraint system that positions a child to
face in the direction opposite to the normal direction of travel of the
motor vehicle and is designed to hold children up to 20 pounds;
``Booster seat'' means, as defined in S4 of FMVSS No. 213, ``either a
backless child restraint system or a belt-positioning seat;'' and
``Other'' encompasses all other child restraint systems not included in
the first two categories.
We recognize that manufacturers of medium-heavy trucks, buses, and
trailers generally do not specify ``model years'' for their products.
For purposes of this rule, to avoid confusion, we are defining the term
``model year'' for those vehicles to mean the year the vehicle was
produced if no model year has been assigned to it. For equipment,
``model year'' will mean the calendar year the item was produced. We
are using the term ``produced'' rather than ``manufactured'' to make it
clear that we are not referring to the year a product was imported into
the United States.
With respect to tires and child restraint systems, production data
would only need to be submitted for a period of five years (i.e., the
year of the reporting period and the four previous years). The ten-year
period would still apply to vehicle manufacturers.
B. Definition of ``Claim''
Section 30166(m)(3)(A) refers to claims data. The ANPRM stated
that, in order to achieve the goals of the TREAD
[[Page 45835]]
Act, the term ``claim'' must be construed broadly and provided some
examples.
We researched the definition of claim, considered comments received
in response to the ANPRM, and considered our investigatory experience
with requests for claims information when we issued the NPRM.
As noted in the NPRM, case law provides interpretations of the word
``claim'' in various contexts. In a Federal law context, `` ``claim''
is something more than mere notice of an accident and an injury. The
term `claim' contemplates, in general usage, a demand for payment or
relief.'' Avril v. U.S., 461 F.2d 1090, 1091 (9th Cir. 1972). See also,
Conoco, Inc. v. United States, 39 Env't. Rep. Cas. (BNA) 1541 (N.D. La.
1994)(written request for compensation for damages or costs); 31 U.S.C.
3729(c) (claim involves request for demand for money or property).
State case law also provides a definition of the word ``claim.''
For example, Fireman's Fund Insurance Co. v. The Superior Court of Los
Angeles County, 65 Cal. App. 4th 1205, 1216 (1997), noted that a claim
encompasses more than a suit:
``claim'' can be any number of things, none of which rise to the
formal level of a suit--it may be a demand for payment communicated
in a letter, or a document filed to protect an injured party's right
to sue a governmental entity, or the document used to initiate a
wide variety of administrative proceedings.
Other state law cases have further addressed the meaning of
``claim.'' Safeco Surplus Lines Co. v. Employer's Reinsurance Corp., 11
Cal. App. 4th 1403, 1407 (1992), held that a ``claim'' is ``the
assertion, demand or challenge of something as a right; the assertion
of a liability to the party making it do some service or pay a sum of
money.'' Phoenix Ins. Co. v. Sukut Construction Co., 136 Cal. App. 3d
673, 677 (1982), stated that ``a claim both in its ordinary meaning and
as interpreted by the courts, is a demand for something as a right, or
as due and a formal lawsuit is not required before a claim is made.''
We explained that the definition of claim should be broad, and meet
our needs under the TREAD Act. We proposed the following definition for
claim (at 66 FR 66195-96):
A written request or demand for relief, including money or other
compensation, assumption of expenditures, or equitable relief,
related to a motor vehicle crash, accident, the failure of a
component or system of a vehicle or an item of motor vehicle
equipment, or a fire. Claim includes but is not limited to a demand
in the absence of a lawsuit, a complaint initiating a lawsuit, an
assertion or notice of litigation, a settlement, covenant not to sue
or release of liability in the absence of a written demand, and a
subrogation request. A claim exists regardless of any denial or
refusal to pay it, and regardless of whether it has been settled or
resolved in the manufacturer's favor. The existence of a claim may
not be conditioned on the receipt of anything beyond the document
stating a claim.
The proposed definition of claim addressed the nature of a
reportable claim and the subject matter that was covered. This was set
forth in one definition to simplify matters and avoid to the extent
possible complex definitional structures. First, a reportable claim
would be a written request or demand for relief, including money or
other compensation, assumption of expenditures, or equitable relief. It
would include, but not be limited to, a demand in the absence of a
lawsuit, a complaint initiating a lawsuit, an assertion or notice of
litigation, a settlement, covenant not to sue or release of liability
in the absence of a written demand, and a subrogation request. A claim
would exist regardless of any denial or refusal to pay it, and
regardless of whether it has been settled or resolved in the
manufacturer's favor. Finally, the existence of a claim could not be
conditioned on the receipt of anything beyond the document stating a
claim. The last two sentences of our proposal were designed to assure
that all relevant claims are provided to us. This would preclude
attempts, similar to those that have been made by some manufacturers in
our investigations, to evade reporting claims by conditioning them on
receipt of parts, or their own assessments of the merits of claims.
Second, as to the subject matter, we referred to a motor vehicle crash,
accident, component or system failure, and a fire, as these are events
that have safety implications. The proposed definition would exclude,
for example, events with which the rule is not concerned, such as
injuries in manufacturers' factories. Finally, the definition did not
address what the claim must involve, allege or contain, as those
matters are not parts of a definition of a claim. They are addressed
below, as are warranties.
PC, CU, the Alliance, AIAM, Nissan, Honda, JPMA, RMA, and Harley-
Davidson provided comments on this definition.
PC expressed approval of the proposed definition, with the caveat
that the agency should also require the submission of basic information
concerning lawsuits, such as the date the complaint was filed, the
alleged injury, and the eventual disposition of the case. The
additional information proposed by PC would not be necessary for early
warning screening. The date the complaint was filed and the eventual
disposition of the matter are not important to NHTSA for early warning
purposes. NHTSA is concerned with the incident and using the basic
information about the incident to identify a potential defect trend,
not the outcome of litigation, which often occurs years later.
The Alliance recommended an alternative definition for a claim. It
suggested a claim means:
a written request or written demand for relief, including money or
other compensation, assumption of expenditures, or equitable relief,
related to a motor vehicle crash, accident, the failure of a
component or system of a vehicle or an item of motor vehicle
equipment, or fire originating in a motor vehicle, that is sent to
the manufacturer from the claimant or his/her authorized
representative. Claim includes a demand in the absence of a lawsuit,
an assertion or notice of litigation, or a subrogation request.
In support of its definition, the Alliance commented, and RMA
concurred, that the definition of ``claim'' must specify more clearly
that a claim must be in writing, regardless of whether it is a
``request'' or a ``demand.'' Furthermore, the Alliance stated that the
definition should limit fire-related claims to those allegedly
originating in a motor vehicle, to avoid the need to report claims
related to fires in factories or offices of a manufacturer. The
Alliance suggested that the definition must clarify that the claim must
originate outside the company by the claimant or the claimant's
authorized representative. The Alliance added that some of the types of
activities included in NHTSA's proposed definition seemed
inappropriate, such as ``settlement,'' or ``covenant not to sue,''
which is not a claim and will not be processed or coded as a claim by
the manufacturer's ordinary claims-processing functions. It noted that
a ``claim'' precedes a ``settlement'' or ``covenant not to sue,'' so it
saw no need to include those terms in the definition. Finally, the
Alliance submitted that a class action suit should be reported as one
claim, rather than per member, because there is no way to ascertain the
size of the class.
Harley-Davidson observed that the proposed definition of ``claim,''
unlike the proposed definition of ``warranty claim,'' is not
necessarily limited to claims presented to the manufacturer, and should
be revised accordingly.
JPMA requested the agency clarify that manufacturers need not
report requests for free replacement components, such as harness clips,
[[Page 45836]]
broken in collisions where the claim does not allege or suggest that
the broken component had anything to do with the injuries sustained in
the collision.
We have carefully considered these comments. The Alliance and RMA
suggested that NHTSA clarify that the claim be made in writing. The
proposal defines a claim in part as ``a written request or demand for
relief.'' The Alliance asked whether a ``demand'' also has to be in
writing, asserting that some may conclude that only a ``request'' has
to be in writing. We meant that ``written'' applies to and modifies
both requests and demands, but since there appears to be some confusion
as to our intent we are adding ``written'' before ``demand.''
The Alliance, RMA and Harley-Davidson also suggested that a claim
must be one that is sent to the manufacturer from the claimant or the
claimant's authorized representative. As noted in the definitions of
claim from cases cited above, transmission of the claim is not part of
the definition of claim. We believe that it is implicit that a claim
would not have to be reported if it had not been received by the
manufacturer or its registered agent. Nonetheless, we are adding to the
reporting requirements the element that the claim must be one that is
received by the manufacturer.
A third suggestion submitted by the Alliance is for NHTSA to delete
the terms such as ``settlement,'' or ``covenant not to sue,'' because a
manufacturer would have to receive a claim prior to these types of
activities being undertaken. We disagree with this assertion. A
settlement agreement or a covenant not to sue may have been preceded by
only an oral demand upon the manufacturer. Oral demands need not be
reported. Thus, the exclusion of settlements or covenants not to sue
could result in underreporting.
The Alliance also suggested that a class action suit be counted as
one claim because it is impossible to determine the size of the class.
We agree in part with this comment. Rarely are class action suits
brought where the claims are based on fatalities or injuries. In any
event, for such class actions, each separate class action suit would be
considered as a single claim, at a minimum. However, if a class action
suit against a manufacturer does identify specific persons (excluding
John and Jane Does) who died or were injured, the manufacturer should
report on each of these claims separately. Similarly, in instances
where there is a class action involving property damage, each
identified class representative should be reported as presenting a
separate claim.
We have considered cross-claims and third-party claims. A
manufacturer would not need to report any claim, including a cross-
claim, if it had already reported a claim involving the incident.
However, it would have to report a third-party claim against it if it
had not previously reported the incident. This would assure that we
receive the information about the incident underlying the claim. For
example, the original defendant might be an automotive dealership that
third-partied the manufacturer as a defendant to a suit.
The vehicle manufacturers also raised comments on whether claims
arising out of some fires should be reported. The Alliance commented
that the inclusion of ``fire'' in the definition could be construed as
covering claims received by a manufacturer related to fires that did
not originate in motor vehicles. The intent of NHTSA's proposed
definition was that the fire must relate to a motor vehicle or item of
motor vehicle equipment; we did not intend to require reports on office
or factory fires. Nonetheless, to clarify reporting of claims due to a
fire, we are modifying the proposal to specify that it includes fires
originating in or from a motor vehicle or a substance that leaked from
a motor vehicle. This would cover, for example, fires from gasoline
that spilled in a crash.
We also received comments on environmental claims. In general,
NHTSA does not address issues involving alleged injury due to long-term
environmental exposure. However, there can be overlaps between vehicle
safety and environmental issues, and therefore we are not excluding all
environmentally-related claims. For example, a vehicle fuel-release
problem may be cognizable under the Clean Air Act, tort law, and the
Vehicle Safety Act. Unfortunately, the comments we received on this
issue lacked detail and did not suggest how to exclude irrelevant
claims, although some examples were provided. For example, Nissan and
the Alliance stated that exposure to asbestos in brake linings could
lead to a claim related to environmental exposure. We are also aware of
issues related to emissions of volatile organic compounds from vehicle
interiors and of end-of-life environmental claims such as those related
to disposal. This could include claims associated with the disposal of
tires, batteries and mercury-containing components, as well as other
vehicle residuals such as in junkyard operations (e.g., incineration).
We have decided that these types of claims do not have to be reported
to NHTSA under the early warning rule and are adding an exclusion to
the definition of ``claim'' to reflect this. The reason is that these
claims do not relate to the safety of a motor vehicle that is or may be
operated. They would not aid in spotting a defect trend and are not the
basis of past Vehicle Safety Act recalls.
JPMA, which represents child restraint manufacturers, commented
that NHTSA should clarify that manufacturers of this equipment need not
report requests for free replacement components, such as harness clips,
broken in collisions where the claim does not allege or suggest that
the broken component had anything to do with deaths or injuries or
property damage. This comment is not consistent with the structure of
the rule. Under the rule, manufacturers are required to report claims
in the absence of an allegation of a specific failure of a component or
causation. As discussed in the NPRM, many claims do not include
specific allegations, but merely include general allegations of product
failure. This is a type of information that NHTSA is seeking to help it
identify defect trends. We believe that by requiring the reporting of
all claims that fall within the definition, NHTSA will capture the
information most likely to identify a potential defect trend. Of
course, if the consumer's request was not related to a crash, such as a
statement that a component was lost and the consumer requested a free
replacement, the manufacturer would not report that request.
Therefore, based upon the foregoing we are defining ``claim'' as:
A written request or written demand for relief, including money
or other compensation, assumption of expenditures, or equitable
relief, related to a motor vehicle crash, accident, the failure of a
component or system of a vehicle or an item of motor vehicle
equipment, or a fire originating in or from a motor vehicle or a
substance that leaked from a motor vehicle. Claim includes, but is
not limited to, a demand in the absence of a lawsuit, a complaint
initiating a lawsuit, an assertion or notice of litigation, a
settlement, covenant not to sue or release of liability in the
absence of a written demand, and a subrogation request. A claim
exists regardless of any denial or refusal to pay it, and regardless
of whether it has been settled or resolved in the manufacturer's
favor. The existence of a claim may not be conditioned on the
receipt of anything beyond the document(s) stating a claim. Claim
does not include demands related to asbestos exposure, to emissions
of volatile organic compounds from vehicle interiors, or to end-of-
life disposal of vehicles, parts or components of vehicles,
equipment, or parts or components of equipment.
[[Page 45837]]
C. Definition of ``Notice''
Section 30166(m)(3)(C) provides for the reporting of ``all
incidents of which the manufacturer receives actual notice,'' involving
fatalities or serious injuries that are alleged or proven to have been
caused by a possible defect in its products. The term ``actual notice''
is extremely broad. To avoid impractical requirements, we proposed to
require reporting of incidents of which a manufacturer receives or
obtains documentation (e.g., in written or electronic formats). 66 FR
66196. We tried to avoid overlapping the definition of claim, which, as
noted above, includes a written request or written demand for relief.
In this context, we proposed to define ``notice'' in the context of an
applicable incident to mean ``a document received by or prepared by a
manufacturer that does not include a demand for relief.'' This would
include, for example, a letter advising a manufacturer of a crash in
which there was a death or injury and an allegation of a defect in the
vehicle where there was no claim for monetary or other relief. In the
preamble to the proposed rule, we noted that newspaper articles or
other media reports would not, in themselves, constitute ``notice,''
unless either they were provided to the manufacturer, such as by an
owner, or actions taken by the manufacturer reflect that it had
received notice of the incidents in question.
The Alliance, Nissan, MEMA, PC, Bendix, and RMA provided comments.
PC agreed with NHTSA's proposed definition.
The manufacturer commenters (Alliance, Nissan, MEMA, Bendix, and
RMA) argued that the proposed definition of ``notice'' was too broad
and over inclusive. More particularly, Nissan and RMA stated that the
language ``prepared by the manufacturer'' was a concern. RMA observed
that the agency did not provide examples of what type of document
``prepared by the manufacturer'' would be included within the
definition of ``notice,'' and recommended that this category be
eliminated in the absence of further guidance and clarification on the
issue. Thus, RMA recommended that the definition of ``notice'' be ``a
document received by a manufacturer that does not include a demand for
relief.''
All the manufacturers complained that the proposed definition would
be construed to include all newspaper articles and media reports
discussing the manufacturer and asserted that this would impose a
tremendous burden on the manufacturers. Nissan was concerned as to what
actions taken by a manufacturer can transform a mere article into a
reportable notice.
Several commenters submitted alternate proposals for the definition
of notice. The Alliance suggested that notice be defined as a written
communication sent to a manufacturer alleging that a defect in a motor
vehicle or item of motor vehicle equipment by that manufacturer caused
an injury or fatality to the person originating the communication or to
the person on whose behalf the notice is sent, but that does not
request relief from the manufacturer. Notice does not include newspaper
articles, publicly available Internet bulletin board postings or other
materials in the public domain.
Nissan recommended that the definition of notice exclude situations
where a manufacturer would have to report on ``actions'' in connection
with media reports and be limited to those that, on their face, are
presented to manufacturers for the purposes of notifying them of a
potential vehicle defect. MEMA suggested that ``notice'' be defined as
``a document received by a manufacturer that (a) does not include a
demand for relief, and (b) does not consist of unconfirmed media or
other unconfirmed reports.''
Finally, Bendix suggested that requests for information that
manufacturers receive from other government agencies, such as the NTSB,
should be excluded from the definition of notice. We have considered
these comments and have modified the proposed definition of ``notice''
to reflect them.
The Alliance recommended without explanation that the definition of
notice include an element of death or injury. This was not included in
MEMA's suggested definition. We are not adopting the Alliance's
proposal. The definition of notice characterizes the essential nature
of the notice. The elements that must to be set forth in the notice to
trigger reporting are separate from the definition and are addressed
under the regulatory requirements.
Next, under the definition in the NPRM, a document ``prepared by a
manufacturer'' that does not include a demand for relief would be a
``notice.'' As noted above, several commenters expressed concern over
the potential breadth of the language ``prepared by the manufacturer.''
In consideration of these comments, we are not adopting this phrase as
part of the final definition. Before adopting such a requirement, we
need to consider further the obligations that such a requirement would
impose and the associated burdens.
Several manufacturers expressed concern that they would have to
review and scan every news medium for reports discussing their
products. This does not follow from a fair reading of the preamble to
the NPRM. As we stated, newspaper articles and other media reports
would only be reported when sent to the manufacturer by an owner or in
situations where the manufacturer itself acknowledges, through its
actions, that it received notice of the actual incident that was the
subject of the media report. Furthermore, under the proposed rule, to
trigger reporting, notices of death and injury had to allege or prove
that the fatality or injury was caused by a possible defect in the
manufacturer's vehicle or equipment and the vehicle had to be
identified with minimal specificity.
Nonetheless, to reduce burdens that might be associated with review
of newspaper articles, the definition of ``notice'' in the final rule
requires reporting only of letters and other documents sent to the
manufacturer (including those sent in electronic form) that on their
face include the elements of the rule regarding notices of deaths and
injuries, without regard to the content of any enclosed or attached
newspaper article. This is expressed in the final rule by the phrase
``other than a media article.'' In general, newspaper articles do not
have the required elements for reporting, including an allegation of a
death or injury alleged or proven to have been caused by a defect, and
minimal specificity regarding the vehicle or equipment. We believe that
this resolution will result in very little unreported information and
that it will reduce burdens associated with the asserted need to review
newspapers or magazines for articles that may involve reportable
incidents. This approach is similar to the first part of MEMA's
proposed definition. However, we believe the definition suggested by
the Alliance is too narrow. The Alliance would limit reporting of
notices to those sent to a manufacturer by a customer or his/her
representative. We would want reporting of notices by others, such as
an injured non-owner passenger or eyewitness, and reporting where the
legal status of a person as a representative is not specified, as it
might not be in a letter written by a non-attorney.
Finally, we agree with Bendix that requests for information from
other government agencies would generally not constitute a ``notice.''
However, we will not exempt all communications from such agencies,
since they could relate to a problem that the agency or one of its
employees had with a vehicle
[[Page 45838]]
or an item of equipment. This is most obvious with respect to
communications from the General Services Administration, which manages
many Federal vehicles, but also can apply to other agencies. To avoid
unnecessary burdens, however, we will exempt communications from NHTSA,
since we would already have the information included in such a
communication.
Therefore, ``notice'' is defined in the final rule as ``a document,
other than a media article, that does not include a demand for relief
and that a manufacturer receives from a person other than NHTSA.''
D. Identification of the Product in Claims and Notices
To be covered by these early warning requirements, a claim or
notice, as well as other matters addressed below, would have to
identify the vehicle or equipment item involved in at least a minimal
way. Otherwise, it would not be possible to identify what vehicle or
equipment was involved, and the information would not help us to
identify potential defects. In the context of identification, we
proposed to use the term ``minimal specificity'' and to define it to
mean ``(a) for a vehicle, the make, model and model year, (b) for a
child seat, the model (either the model name or model number), (c) for
a tire, the model and size, and (d) for other motor vehicle equipment,
if there is a model or family of models identified on the item of
equipment, the model name or model number.''
We proposed to define ``model year'' for this and all other early
warning reporting purposes, for vehicles, to include the year that a
vehicle was manufactured if the manufacturer has not assigned a model
year to the vehicle covered by the report. For equipment, we proposed
that ``model'' mean the name that its manufacturer uses to designate
it. `` Model year'' would mean the calendar year in which the equipment
was manufactured.
We asked for comments on the clarity and inclusiveness of these
proposed definitions.
Johnson asked the agency to confirm that an incident involving an
item of equipment need not be reported by its manufacturer unless the
manufacturer has knowledge of the assembly part number or the component
part number of the equipment item involved. The comment did not
elaborate on why model name or model number would be inadequate and why
an equipment item would have to be identified with this level of
specificity for its manufacturer to comply with the proposed early
warning reporting requirements. In view of the lack of information in
the comment, we have no basis to modify our proposed definition.
Adoption of such a suggestion could result in underreporting of claims
of death.
RMA commented that, for a tire, the minimal information required
should be the ``manufacturer, tire line, tire size, and tire
identification number (TIN).'' According to RMA:
the term ``tire line'' is the preferred term used by the tire
manufacturers to designate their products, and, in most cases, is
synonymous with the term ``tire model.'' The ``tire line'' name
appears on the tire sidewall and is readily identifiable by
consumers. Examples of ``tire line'' names are: Grabber AP, Discover
A/T, Scorpion A/S, Firehawk LH, Energy MXV4 and Wrangler HT.
Accordingly, NHTSA will adopt the RMA recommendation to use the
term ``tire line'' rather than ``model,'' and to define it as ``the
entire name used by a tire manufacturer to designate a tire product,
including all prefixes and suffixes as they appear on the sidewall of
the tire.''
RMA asserted that that a reporting manufacturer should verify that
it was, in fact, the manufacturer of the tire and that tire line, size,
and TIN are needed for a precise identification of the tire. We
disagree with respect to the TIN. To require a TIN would result in
underreporting. If a tire is involved in a death, for early warning
purposes it is sufficient that we know the tire manufacturer, tire
line, and tire size, whereas the TIN may not be known at the time that
the manufacturer initially receives the claim or notice. Timeliness is
of the essence. Thus, we have decided that minimal specificity for
tires is the manufacturer, tire line, and tire size.
With regard to claims, notices, and other reporting obligations
discussed below, for vehicles, we proposed to define ``model'' to mean
``a name that a manufacturer applies to a family of vehicles within a
make which have a degree of commonality in construction, such as body,
chassis or cab type.'' ``Make,'' in turn, would mean ``a name that a
manufacturer applies to a group of vehicles.'' The proposed definition
of ``make'' was identical to the definition of ``make'' used in 49 CFR
Part 565, Vehicle Identification Number Requirements (see Section
565.3(g)). The proposed definition of ``model'' is the definition the
VIN regulation uses for ``[vehicle] line'' (see Section 565.3(f)). We
requested comments on this approach and how our definition may achieve
it. We did not receive any.
Our objective is to obtain reports by commonly-understood
designations. For example, manufacturers must submit separate reports
for pickup trucks and sport-utility vehicles built on a similar frame,
since the submission of more narrowly defined data sets provides
enhanced analytical capabilities, the vehicles are subject to different
uses and stresses, and the vehicles have numerous different components.
We would receive separate reports for identical vehicles of different
``makes'' (such as Chevrolet and GMC pickups, or Ford Taurus and
Mercury Sable passenger cars). In addition, manufacturers would submit
separate reports for different basic models of pickup trucks, such as
the Ford F-150, F-250, and F-350, but within each such model, they
would not submit separate reports for two-door and four-door versions,
or versions with different engines, transmissions, or trim packages.
Moreover, manufacturers would not report separately for two-wheel drive
and four-wheel drive versions of the same vehicle, since this
distinction is normally not critical in an early warning context.
If an otherwise covered claim or notice as initially received by
the manufacturer does not identify the allegedly defective product with
minimal specificity but a subsequent communication does, it would
become a covered claim or notice at the time of the subsequent
communication, and the manufacturer would be required to report it in
its next report to NHTSA. See Section 579.28(d).
E. Claims and Notices Involving Death
1. Whether to Define Death
We did not propose to define death or fatality because we did not
believe that it is necessary or appropriate to do so. Our reason was
simple: the subject matter of this category of information is claims
involving deaths and notices of incidents involving fatalities. As we
explained, proof of death is not necessary, nor does it matter when
death occurred.
2. Claims Involving Death
We proposed that every manufacturer be required to report certain
information about each incident involving a death identified in claims
it received during each reporting period, if the claim identified the
product with minimal specificity. This would apply to claims regarding
fatal incidents in foreign countries as well as the United States. We
will discuss the comments related to this issue in the next section.
3. Notices Involving Death
We also proposed that manufacturers be required to report similar
information about each incident involving a death
[[Page 45839]]
that occurred in the United States that is identified in a notice (as
defined above) in which it is alleged or proven that the fatality was
caused in whole or in part by a possible defect in such manufacturer's
vehicle or equipment, received during each reporting period, if the
product is identified with minimal specificity. Information about
incidents referred to in such notices would be combined with
information about claims involving deaths on the same report, which
would be submitted in electronic form, as discussed below.
CU, the Alliance, Nissan, AIAM, and Delphi commented on our
proposals with respect to incidents involving death. CU supported the
proposal as written. The Alliance requested clarification on the
reporting of incidents involving a death in another manufacturer's
vehicle, or the death of a pedestrian. The remaining commenters
expressed concern that the proposed requirements could result in the
submission of reports on the same incident by more than one
manufacturer, or could burden manufacturers with the need to update
reports in the event that a person initially reported as injured later
dies.
Delphi expressed concern with possible duplication in the reporting
requirements. Its comment noted that, under its interpretation of the
proposed rules, it is possible that both the vehicle manufacturer and
the manufacturer of a system or component used in the vehicle could
report the same incident to NHTSA. Delphi recommended that the database
have a key-relational column that could be used to identify redundancy.
Delphi asserted that the name of the person who died is the only
information that would be generally available for this purpose.
Accordingly, it suggested that the agency acquire and maintain that
information but not make it public.
While we recognize that there is a possibility of redundancy (i.e.,
that an incident involving a death could be reported by a vehicle
manufacturer and a supplier), we believe that it is vitally important
that we maximize the information about such incidents that is presented
to us. Also, reports by a component manufacturer could be of importance
either to the vehicle manufacturer or NHTSA in detecting potential
defects when the same component is used in the vehicles of another
manufacturer that has not yet received claims and notices involving
deaths and injuries. As reported by the Alliance, the total number of
claims received by its members (plus Honda) in 2000 for both death and
injury was 9,200. It is likely that we will be able to identify most
duplicate reports by considering the date of the incident and the
location. Thus, there is no need to require manufacturers to submit the
names of persons who died in the incidents.
Delphi also recommended that a means be provided for a manufacturer
to update information that it previously submitted. For example, a
manufacturer may receive notice of a death during a reporting period
and subsequently receive notice of another death attributable to the
same incident. Delphi suggested that the process for updating this type
of information be defined. As discussed in Section IV.O, below, we have
decided to limit the amount of required updating of information about
incidents previously reported to us.
The Alliance asked NHTSA to clarify how a manufacturer should
handle claims or notices identifying incidents involving a death (or
injury) in another manufacturer's vehicle, or the death (or injury) of
a pedestrian. The comment explained that this may occur, for example,
in cases where the claim alleges that the striking vehicle, in which no
death or injury occurred, had brake failure. The Alliance recommended
that the manufacturer should report these incidents to NHTSA, even
though it may result in some overcounting if the manufacturer of the
other vehicle involved submits a report on the same incident. We agree.
Nissan stated that the proposed rule contained an omission in that
it did not expressly limit the reporting of incidents involving deaths
in foreign countries to those alleging that the death was caused by a
possible defect in the manufacturer's product. As noted in the NPRM's
preamble, this approach to reporting was intentional. Under the
proposed rule, manufacturers would be required to report incidents
involving one or more deaths or injuries occurring in the United States
that are identified in claims against the manufacturer or in notices to
the manufacturer alleging or proving that the death was caused by a
possible defect in the manufacturer's product. See, e.g., proposed
Section 579.11(b). The condition that there be an allegation or proof
that the death was caused by a possible defect applied to notices but
not to claims. For incidents involving one or more deaths occurring in
foreign countries, a manufacturer would only need to report claims
against it involving its product or one that is identical or
substantially similar to a product that the manufacturer has offered
for sale in the United States, but not notices of such deaths. Id. The
agency explained in the preamble of the NPRM that because of problems
and costs anticipated for the collection, categorization, translation,
and analysis of foreign data, it had ``decided not to require at this
time any information about incidents that occur in foreign countries
except for those based on claims involving deaths.'' See preamble at p.
66215. The agency further explained in the preamble that because the
assertion of a defect or malfunction is implicit in most ``claims,''
``for early warning reporting purposes, a claim need not specifically
allege or describe a defect.'' See preamble at p. 66199. For those
reasons, as well as the realization that causation may not be required
under foreign legal systems, the agency will not limit the reporting of
incidents involving deaths in foreign countries identified in claims to
those specifically alleging that a death was caused by a possible
defect in the manufacturer's product.
4. Information About Deaths
We proposed that the information about deaths to be reported would
contain, for each incident, the make, model, and model year of the
vehicle or equipment, the date of the incident, the number of deaths
that occurred in the incident, the name of the State in the United
States or the foreign country in which the incident occurred, and the
identification of each component or system that allegedly contributed
to the incident or the death reported. We are adopting this proposal
and adding a requirement to report the VIN of the vehicle, or the TIN
of the tire, as applicable. The VIN is needed to allow us to fully
identify the vehicle in question and compare it to relevant peers and
to utilize other relevant information that may be available (e.g., FARS
data). The TIN is needed to confirm related information about the tire
in question.
We are also limiting the number of components or systems that need
to be identified to five. It is unlikely that any claim or notice would
identify more than five components or systems as having contributed to
an incident. If the incident involved fire or rollover, these events
are included in the limitation of five.
However, given the large and varying universe of motor vehicle
equipment, manufacturers of original equipment and of replacement
equipment other than tires and child restraint systems would describe
the systems or components involved in their own words, based on the
claim or notice. We proposed this approach to make reporting by these
manufacturers simpler than it would otherwise be if they had to use
designations with which
[[Page 45840]]
they are not familiar. We are adopting this approach.
F. Claims and Notices Involving Injuries
1. The Definition of ``Injury''
The preamble of the NPRM identified an assortment of problems
encountered by the agency in considering whether to define ``serious
injury,'' and stated that in view of those problems, ``we are proposing
to require certain categories of manufacturers to report each incident
in which persons are injured in the United States that is identified in
a claim or notice alleging or proving that the injury was caused by a
defect in the manufacturer's product, if the claim or notice identifies
the product with minimal specificity.'' 66 FR 66198. The NPRM noted
that even though pertinent statutory provisions at 49 U.S.C.
30166(m)(3)(A) and (C) make reference to ``serious injury,'' the agency
is authorized under Section 30166(m)(3)(B) to require the reporting of
claims and notices involving all injuries. The proposed rule would
require manufacturers to submit ``[a] report on each incident involving
one or more deaths or injuries occurring in the United States that is
identified in claim(s) against the manufacturer or in notice(s) to the
manufacturer alleging or proving that the death or injury was caused by
a possible defect in the manufacturer's [product] * * *''
The Alliance, AIAM, Nissan, Honda, MIC, Spartan, Utilimaster, JPMA,
and CU provided comments.
Notwithstanding NHTSA's explanation of its reasons for requiring
reports of incidents involving all injuries as opposed to serious
injuries, several manufacturers (Honda, Utilimaster, and Spartan)
continued to argue that NHTSA should develop a clear, easy-to-apply
definition to limit the reporting of serious injury claims. Honda
contended that Congress recognized the potential pitfalls of mandating
the collection of too much data by specifying the data to be collected
in TREAD Act (Section 3(b)(m)(3)(a)(i)) as ``data on claims submitted
to the manufacturer for serious injuries (including death) and
aggregate statistical data on property damage from alleged defects in a
motor vehicle or in motor vehicle equipment.'' As an alternative, Honda
proposed to define serious injury as ``one that normally requires
treatment by medical professionals,'' to reduce the analytical skill
level necessary to categorize injuries.
Several manufacturers (the Alliance, AIAM, Nissan and Honda)
commented that NHTSA should exclude claims for non-physical injuries,
such as emotional distress, loss of consortium, and long-term
environmental exposure. They asserted that these claims do not add any
value to spotting a defect trend.
We do not agree with Honda's suggestion that serious injury be
defined as ``one that normally requires treatment by medical
professionals.'' This definition is vague. Honda's definition would
require us to define what ``normally requires treatment by medical
professionals,'' a daunting task for the vast array of potential
injuries. Honda did not define ``normally requires,'' ``treatment,'' or
``medical professionals.'' Honda's suggestion raises the concerns we
addressed in the NPRM concerning an objective definition of ``serious
injury'' in the context of the AIS system. NHTSA chose not to define
``serious injury'' because of difficulties in objectively defining
``serious injury,'' concern about manufacturers' delays in reporting
the information as a result of the need to assess seriousness in the
absence of necessary information, and the need for subjective
determinations on the part of the manufacturers. We also wanted to ease
manufacturers' fears that their decisions would be second-guessed and
reduce the burden on them that continued monitoring to consider newly
received information would require. In addition, Honda's suggestion
would require manufacturers to hire expert staff to make assessments.
The concern expressed most often by industry commenters in regard
to reporting on claims and notices involving injuries is that the
definition of injury should exclude non-physical injuries such as
emotional distress and injuries related to environmental conditions. In
our view, practical considerations dictate that distinguishing between
physical and non-physical injuries is not appropriate in the context of
early warning reporting. In many cases, claims for injury are not very
specific as to the type of injury alleged. Most states have very
liberal pleading requirements for stating a cause of action in a
complaint initiating a lawsuit. Some merely require that the complaint
allege a general cause of action and that as a result the plaintiff
sustained injury. Some states, such as California, use generic pleading
forms for certain types of causes of action, such as motor vehicle
accidents, general negligence, and product liability. These pleading
forms do not require that a claimant indicate the precise or detailed
type of injury. Instead, the claimant merely checks a box that
indicates whether he or she is claiming compensatory damages. In these
instances, where there were general allegations, unless it performed
continued monitoring of claims (which most manufacturers resisted on
grounds of burden), a manufacturer would be unable to distinguish
between a claim alleging a physical injury and a claim alleging a non-
physical injury.
Furthermore, if we were to embark on an exclusion of ``non-physical
injury claims,'' we would have to define the term. This is ill advised
for the same reasons set forth above regarding the reasons why we chose
not to define ``serious injury;'' e.g., reporting delays, subjective
determinations of manufacturers, second-guessing manufacturer
decisions, easing burdens, etc.
We have considered the commenters' concern that reporting incidents
involving non-physical injuries may indicate the existence of a defect
trend when there is none. However, the comments have not demonstrated
that non-physical injuries would necessarily not be indicative of a
defect trend. At a minimum, we believe the reporting of some non-
physical injuries may be desirable under the early warning rule.
Consider for example a situation where an inadvertent air bag
deployment did not cause physical injury but there is an alleged
emotional injury. The inadvertent air bag deployment would be of
interest to NHTSA since it could lead to physical injuries in other
incidents. In another instance, a tire tread might separate, causing
the driver to lose control of the vehicle and go off the road. The only
injury may be an alleged emotional injury that is brought to the
attention of the tire manufacturer through a claim. If we followed the
suggestion of some commenters, these matters could go unreported.
However, these claims are important to NHTSA because they may be
indicative of a vehicle or component problem.
Several manufacturers raised concerns regarding claims related to
environmental exposure to toxic substances, such as asbestos. We have
addressed those concerns in our discussion of the definition of
``claim.''
2. Reporting of Incidents in Which Persons Were Injured, Based on
Claims and Notices
We proposed to require manufacturers (other than those covered by
proposed Section 579.28) to report each incident in which one or more
persons are injured in the United States that is identified in a claim
or notice, if the product was identified with minimal specificity and,
as to notices, it was alleged or proved that the injury was
[[Page 45841]]
caused by a possible defect in the product. For these manufacturers,
the report would be combined with the reporting of incidents involving
fatalities and include the same types of information. This would limit
the number of reports and avoid duplication that could be associated
with separate reports of deaths and injuries stemming from the same
incident. We are adopting this approach for the reasons discussed
above.
G. Other Possible Conditions on Reporting of Deaths and Injuries
In the NPRM, we recognized that some commenters to the ANPRM
suggested that, to be covered under the reporting provisions, a claim
or notice must also specifically allege that the fatality or injury was
caused by a possible defect. The allegation of a defect is not
statutorily required under Section 30166(m)(3)(A) or (B). Moreover,
such a limitation would lead to under-reporting. In a lawsuit, which is
one type of a claim, a defect need not be alleged if the pleading
requirements of the relevant jurisdiction do not require such an
averment. For example, in some states such as California, the claim/
pleading requirements for complaints do not require the plaintiff to
allege the existence of a defect. Moreover, with respect to claims, the
assertion of a defect is implicit, since ordinarily there would
otherwise be no reason to make the claim. Therefore, we proposed that,
for early warning reporting purposes, a claim need not specifically
allege or describe a defect. It is enough if the claim contains
information indicating that a death or injury has allegedly occurred,
and it is alleged or proven that the manufacturer's product is
responsible.
Different considerations apply to those incidents of which the
manufacturer receives notice that does not amount to a claim, since
Section 30166(m)(3)(C) provides for reports of incidents of which the
manufacturer receives notice which involve fatalities which are alleged
or proven to be caused by a possible defect. Thus, for such notices, we
proposed to require an allegation of a defect. Otherwise, the
manufacturer would be required to report incidents as to which no one
believes that the manufacturer's product contributed to the death or
injury; e.g., a fatal crash due to high speed or drunk driving.
However, an allegation of defect would not have to identify the
specific component or system that allegedly led to the incident.
In the NPRM, we addressed the suggestion by some manufacturers that
the allegation that a vehicle component is involved should have to be
confirmed before an incident would have to be reported. We rejected
this suggestion, since the litigation process is lengthy, and it may be
months or years before the involvement of a component is confirmed, if
at all. The vast majority of cases settle without findings and of those
that do not, many may not identify the defective component in jury
resolutions. Also, the earlier that information arrives at the agency,
the earlier we will be able to determine whether a formal investigation
needs to be opened.
We also addressed the suggestion by some manufacturers that the
reportable incidents be limited to failures of or problems with certain
vehicle systems. As discussed in the preamble to the NPRM and below, we
believe that this approach is appropriate for certain types of
information. However, while deaths and injuries are relatively rare,
they are so significant that we want our information to be as complete
as possible. Therefore, we proposed to require reporting of all deaths
and injuries in the United States based on claims and notices,
regardless of the implicated components.
Section 30166(m)(3)(A) refers to claims ``derived from foreign and
domestic sources.'' In the same vein, in addition to incidents in the
United States, Section 30166(m)(3)(C) refers to the reporting of
certain incidents of which the manufacturer receives actual notice that
occur in a foreign country, when the vehicle or equipment is identical
or substantially similar to products offered for sale in the United
States. Thus, the TREAD Act reflects Congressional intent that
manufacturers submit information involving foreign deaths. In an effort
to minimize the burdens associated with gathering information about
incidents in foreign countries simply involving notice, in this phase
of rulemaking we proposed to require only reporting of such claims
involving fatalities occurring in a foreign country. See, for example,
proposed Section 579.21(b)(1). We did not propose to require reports
about incidents in foreign countries that resulted in non-fatal
injuries. In light of the anticipated robustness of the domestic data,
we did not believe that our early warning capabilities would be
adversely affected. We recognize that the final rule will require
manufacturers including their subsidiaries and affiliates to review
foreign information bases, but believe the seriousness of fatalities
associated with potential defects warrants this requirement. No
comments objected to the proposal to report on claims involving death
outside the United States, and we are adopting the proposed provisions.
H. Identical or Substantially Similar Motor Vehicles or Equipment.
Under Section 30166(m)(3)(C), manufacturers of vehicles or
equipment must report:
* * * incidents of which the manufacturer receives actual notice
which involve fatalities or serious injuries which are alleged or
proven to have been caused by a possible defect in such
manufacturer's motor vehicle or motor vehicle equipment * * * in a
foreign country when the possible defect is in a motor vehicle or
motor vehicle equipment that is identical or substantially similar
to a motor vehicle or motor vehicle equipment offered for sale in
the United States. (emphasis added)
For the reasons discussed in the preamble to the NPRM, we conclude
that ``identical'' vehicles and equipment are at least substantially
similar, and therefore there is no need to define that term. There were
no comments in response to this proposal, and we are adopting it here.
1. Substantially Similar Motor Vehicles
We expect that there will be a limited number of reports involving
substantially similar vehicles because the question only arises in the
context of reporting claims for deaths occurring outside the United
States. Our communications with manufacturers lead us to conclude that
such claims are far fewer in foreign countries than in the United
States. Thus, the burden associated with reporting such claims should
not be large.
In the Foreign Defect Reporting NPRM, we discussed at length the
issue of ``substantially similar motor vehicles'' and proposed that
motor vehicles would be substantially similar to each other if one or
more of five criteria were met. See 66 FR 51907 at 911-913. We
tentatively determined that four of these criteria would be appropriate
for Early Warning Reporting as well, and incorporated our views on
these criteria by reference in the NPRM. See 66 FR 66190 at 199-200.
The fifth criterion, relating to safety recall campaigns was
inappropriate for early warning purposes where no campaign had been
conducted, and was not proposed. Instead, we developed a new criterion,
that a vehicle uses the same vehicle platform as a vehicle sold in the
United States. Thus, we proposed that motor vehicles would be
substantially similar for early warning purposes, as follows:
(1) A motor vehicle sold or in use outside the United States is
identical or substantially
[[Page 45842]]
similar to a motor vehicle sold or offered for sale in the United
States if--
(i) Such a vehicle has been sold in Canada or has been certified
as complying with the Canadian Motor Vehicle Safety Standards;
(ii) Such a vehicle is listed in Appendix A to part 593 of this
chapter or determined to be eligible for importation into the United
States in any agency decision issued between amendments to Appendix
A to part 593;
(iii) Such a vehicle is manufactured in the United States for
sale in a foreign country;
(iv) Such a vehicle is a counterpart of a vehicle sold or
offered for sale in the United States; or
(v) Such a vehicle uses the same vehicle platform as a vehicle
sold or offered for sale in the United States.
As noted above, our approach addressed both identical and
substantially similar motor vehicles of all types and sizes ranging
from small motorcycles to heavy trucks and trailers. It included five
alternate criteria. No one alone was sufficient. Some were more
straightforward and required less factual information than others. Some
would apply more broadly than others. At least one might not apply to
certain types of vehicles. Collectively, they would cover the range of
vehicles and extend coverage beyond identical vehicles to a range of
substantially similar vehicles.
The first three criteria are self-explanatory and are addressed in
the Foreign Defect Reporting NPRM. With respect to the fourth
criterion, the preamble of that NPRM did not directly explain what we
meant by a ``counterpart'' vehicle. However, by example, a discussion
appearing on page 51912 provided an explanation of what, in our view,
would be counterpart vehicles: ``An example would be Ford Explorers
assembled outside the United States, such as those assembled in
Venezuela.'' We added that ``We would appreciate comments on whether
this latter class of vehicles needs to be defined with greater
specificity,'' warning that that ``in our view the term substantially
similar sweeps with a broad brush and is not to be defeated by persons
bent on finding or inventing distinctions to evade reporting.'' We
proposed a definition of ``counterpart vehicle'' for early warning: ``a
vehicle made in a foreign country that is equivalent to one made in the
United States except that it may have a different name, labeling,
driver side restraints, lighting or wheels/tires, or metric system
measurements.'' See 66 FR 66200.
As for the fifth criterion, we tentatively concluded that platform-
based reporting would be consistent with the breadth of early warning
reporting, yet specific enough to provide adequate direction to
manufacturers. An example would be the Cadillac Catera, which used the
same vehicle platform as the Opel Omega, or the Jaguar S-Class, which
shares a platform with the Lincoln LS. We specifically requested
comment on our view that foreign and U.S. vehicles would be
substantially similar for reporting under Section 30166(m) if they
shared a platform. We did not propose a definition for ``platform.'' We
invited commenters to suggest a definition if they believed that a
definition of this term was necessary. No commenter suggested a
definition.
Nissan, AIAM, the Alliance, and GM provided their views on the
issue of how to define ``substantially similar.'' The Alliance
commented that ``substantially similar'' is relevant only for
identifying vehicles for which fatalities must be tracked and reported
on a world-wide basis, and concluded that the definition proposed is
overly-inclusive of vehicles that have no nexus to the United States.
In its view, only a single definition is needed, and the most
appropriate definition is one based on vehicle platform, category (v).
To that, it would add that the vehicle must also have the same body
shell, except for the number of doors. Thus, the Alliance would define
a substantially similar vehicle as one that ``uses the same platform
and body shell (except for the number of doors) as a vehicle sold or
offered for sale in the United States.'' Alliance members Nissan and GM
agreed with the Alliance comment and supported a platform-based
approach.
The Alliance commented further that, if NHTSA adopted the
Alliance's modified definition of category (v), categories (i) and
(iii) would be redundant.
NHTSA disagrees with the Alliance and supporting comments. In our
view, such a definition would be under-inclusive. A platform-based
definition alone falls short for several reasons. First, other criteria
are more certain in their application (when applicable). They do not
depend on the meaning of the word ``platform.'' While the term platform
is commonly used for some types of light and medium-heavy vehicles, it
does not have a universal accepted definition. The fact that the
Alliance suggested a single platform-based criterion yet failed to
respond to our request for a definition suggests that it recognizes the
difficulty of prescribing a universal definition.
In addition, the term platform does not apply to numerous types of
vehicles. For example, because motorcycles are not built on what are
commonly called platforms as the term is used with light and some
medium-heavy vehicles, categories (i) and (iii) would not be redundant,
contrary to the assertions of the Alliance. In any event, to the extent
they are redundant, they would not add to the ``inclusiveness'' of the
definition.
Category (i) specifies that a vehicle sold or in use outside the
United States will be deemed substantially similar to one sold in the
United States if it has been sold in Canada or has been certified as
complying with the Canadian Motor Vehicle Safety Standards (CMVSS). For
example, a Ford Expedition certified as complying with the CMVSS and
used in Saudi Arabia is substantially similar to a Ford Expedition sold
in the United States, because of the near identicality of the CMVSS
with the FMVSS. Category (iii) specifies that a vehicle sold or in use
outside the United States will be deemed substantially similar to one
sold in the United States if it is manufactured in the United States
for sale in a foreign country. This is because (to the best of our
knowledge, and the comments did not show otherwise) there are no makes
and models of motor vehicles manufactured in the United States and sold
outside the United States that are not also sold in the United States.
As for category (ii) vehicles, the Alliance incorporated by
reference its comments on ``substantially similar'' submitted in
response to the Foreign Defect NPRM. In those comments, the Alliance
stated that reliance on the list of ``gray market'' vehicles in
Appendix A of Part 593 was not appropriate as an automatic definition
of ``substantially similar'' because the sole purpose of the Appendix
is to list the foreign vehicles that can be readily modified to comply
with the FMVSS; ``Using this list to cover vehicles outside the U.S.
that are not modified is not appropriate.'' On the contrary, we find it
most appropriate. In order to be listed in the Appendix, NHTSA is
required to have decided that a gray market vehicle is eligible for
importation into the United States on one of two bases. The first
basis, which covers all but a few vehicles on the list, is that the
vehicle is ``substantially similar to a motor vehicle originally
manufactured for import into and sale in the United States.'' See 49
U.S.C. 30141(a)(1)(A)(i). These vehicles are listed in the VSA or VSP
columns of Appendix A. If there is no substantially similar vehicle,
NHTSA must decide that the safety features of the vehicle comply, or
are capable of being modified to comply, with the FMVSS. These approved
vehicles are listed in the VCP column of the Appendix. Because these
vehicles are not
[[Page 45843]]
considered ``substantially similar'' within the meaning of 49 U.S.C.
30141(a)(1)(A)(i), we are modifying category (ii) to clarify that a
substantially similar vehicle ``is listed in the VSP or VSA columns of
Appendix A to part 593'' (note that each relevant vehicle decision
notice under Part 593 amends Appendix A even though the revised
Appendix is published only once a year). Reference to the Part 593 list
should, in fact, make it easier for a manufacturer to determine if a
vehicle that is the subject of a foreign death claim is substantially
similar to one sold in the United States; if it is listed as a VSP or a
VSA, the manufacturer will not have to consider whether the vehicle
qualifies under another category.
In sum, our intent in categories (i) through (iii) is to capture
vehicles that are identical or substantially similar in significant
respects of design and safety-related parts to vehicles that are sold
in the United States.
We next consider the qualifying phrase ``and body shell (except for
the number of doors)'' in the Alliance's suggested platform-based
definition of substantially similar vehicle. According to Automotive
News, ``a platform is typically defined as the basic structure of a
vehicle. Different vehicles built off the same platform commonly share
several structural elements, such as the floorpan, door pillars, and
subframes.'' A commonly-used platform in recent production has been the
``C/K'' series upon which GM has built numerous models including the
Cadillac Escalade, the Chevrolet Silverado, Suburban, and Tahoe, and
the GMC Sierra, Suburban, Yukon/Denali and Yukon XL vehicles (Source:
2000 Market Data Book, Automotive News, May 2000, p. 20; no similar
information provided in 2001 or 2002 editions of Market Data Book). The
Silverado and Sierra vehicles are pickup trucks, with bodies intended
primarily for carrying cargo. The other models are sport utility
vehicles (SUVs) and have bodies intended primarily for carrying
passengers. Thus, there is no common body shell though the platform is
common. Historically, both pickup truck and SUV vehicles built on this
GM platform have many common components such as brakes and airbags.
Most recalls involving the pickups have also covered the SUVs. Yet, C/K
SUV vehicles would not be substantially similar to the C/K pickup
trucks under the Alliance's restrictive criterion because they do not
have the same bodies. However, as noted in Automotive World (September
1999), a platform includes the majority of the floor pan and engine
compartment and is a unit that has no impact on the vehicle's outer
skin. In view of the above we are adopting, as a criterion, category
(v) as proposed. For clarity, we are adopting the following definition
of ``platform,'' as
the basic structure of a vehicle including, but not limited to,
the majority of the floorpan or undercarriage, and elements of the
engine compartment. The term includes a structure that a
manufacturer designates as a platform. A group of vehicles sharing a
common structure or chassis shall be considered to have a common
platform regardless of whether such vehicles are of the same type,
are of the same make, or are sold by the same manufacturer.
Examples of vehicles sharing a common platform are the Chrysler
Group's Plymouth, Dodge, and Chrysler minivans, the Volkswagen Golf and
Beetle and Audi A3 and TT passenger cars, and Toyota Camry vehicles
(including Toyota Camry and Avalon passenger cars, Toyota Sienna
minivans, Toyota Highlander SUVs, Lexus ES 300 passenger cars, and
Lexus RX 300 SUVs).
TMA pointed out that manufacturers of medium-heavy vehicles, buses,
and trailers generally do not use the term ``platform'' to describe
their products. Nor do manufacturers of motorcycles. The terminology
used by manufacturers is not determinative in this context. In addition
to reporting on the basis of a structure that a manufacturer designates
as a platform, we expect these manufacturers to report foreign deaths
involving vehicles built with a structure similar to those used in the
United States. To guard against possible underreporting of such
incidents, we are including the word ``chassis'' in the definition of
``platform'' in this rule.
We note that category (v) will have an extraterritorial
application. For example, we understand that Volkswagen uses a common
platform for some of its range of Volkswagen, Audi, Seat, and Skoda
passenger cars. Although the latter two marques are not certified for
sale in the United States, some models may be ``substantially similar''
to Volkswagen and Audi models built on a common platform and sold in
the United States.
As for category (iv), the Alliance stated that it did not know what
it means for a vehicle to be ``equivalent'' to one manufactured for
sale in the United States; two vehicles could be dissimilar in the
structural and performance attributes that should matter for reporting
requirements. AIAM had a similar criticism of category (iv), and urged
NHTSA to adopt a ``simple, objective definition.'' We have reviewed
these comments, and believe that any vehicle that might qualify for
this category would also qualify under at least one of the other four
categories that we are adopting. The final rule, then, omits proposed
category (iv) (proposed category (v) becomes (iv) under the final
rule).
If a manufacturer has ceased to export any certified vehicles to
the United States (such as Alfa Romeo), its early warning reporting
obligations will also cease after ten years (i.e., assuming that Alfa
Romeo exported no certified vehicles to the United States after the
1995 model year, its early warning reporting obligation would terminate
in 2005).
2. Substantially Similar Motor Vehicle Equipment Other Than Tires
We also proposed that:
An item of motor vehicle equipment sold or in use outside the
United States is identical or substantially similar to equipment
sold or offered for sale in the United States if such equipment and
the equipment sold or offered for sale in the United States have one
or more components or systems that are the same, regardless of
whether the part numbers are identical.
We commented in the preamble to the NPRM that the breadth provided
by this definition seemed necessary given the nature of claims, which
often do not identify particular problematic components. Thus, we would
regard foreign child restraint systems as substantially similar (if not
identical) to U.S. child restraint systems if they incorporate one or
more parts that are used in models of child restraints offered for sale
in the U.S., regardless of whether the restraints are designed for
children of different sizes than those sold in the U.S. and regardless
of whether they share the same model number or name. For example, if
buckles, tether hooks, anchorages, or straps are common throughout a
manufacturer's range of models, the child restraints would be
substantially similar even though the buckles, hooks, anchorages, or
straps might be used on a variety of add-on, backless, belt
positioning, rear-facing or booster seats produced by the manufacturer.
In light of the foregoing, we requested comments on the appropriate
formulation of test(s) for determining whether foreign motor vehicle
equipment is substantially similar to U.S. equipment.
JPMA generally supported the proposed definition but asked that the
preamble and the final rule make clear that ``the reporting requirement
applies only when the same component or system that gave rise or
contributed to the fatality is used in foreign and U.S. models
manufactured by that
[[Page 45844]]
manufacturer.'' Otherwise, the definition would give rise to two
problems. We shall discuss each asserted problem separately.
The first problem as JMPA sees it is that ``absent clarification,
the reporting obligation could be construed to apply to foreign child
restraints incorporating common components with U.S. child restraints
manufactured by another, unrelated manufacturer with whom the foreign
manufacturer shares a supplier.'' JPMA observes that ``Since the
manufacturer of the foreign child restraint may not even know that the
model shares components with U.S. models manufactured by unrelated
companies, it cannot be NHTSA's intention to hold manufacturers
responsible for information they do not possess.'' That is correct.
The second problem, according to JPMA, is that
without clarification that a report is required only when a fatality
is associated with the same component as one used on a model sold by
that manufacturer in the U.S., the reporting requirement could
result in fatality reports that have no reasonable chance of
predicting possible defect trends in the U.S. because they involve
components that are not common to U.S. models.
JPMA thus raises the possibility that a manufacturer will report a
fatality attributable to a component other than one that makes two
child restraint systems ``identical or substantially similar.''
In this situation, we would read the word ``equipment'' both as the
completed item of motor vehicle equipment and as each individual
component that comprises the item. The statute provides for a report
``when the possible defect is in * * * motor vehicle equipment that is
identical or substantially similar * * *'' The child restraint systems
are identical or substantially similar equipment because they share a
common component. We will not relieve the manufacturer of reporting
because the claim may not identify the problematic component; the
identification of the component will result in delay and may be
disputed. We have decided, however, that a claim would not have to be
reported if it specifically identifies a non-common component as the
defect. Although this issue was raised by an equipment manufacturer, it
applies equally to vehicles. Thus, new Section 579.28(g) applies to all
manufacturers.
MIC commented that, ``as proposed, equipment that has one or more
components or systems that are the same regardless of whether the part
numbers are identical is considered substantially similar.'' It asked
``if the only commonality is a single type of fastener that neither
failed nor contributed to the incident, are the components or equipment
substantially similar? It would be our view that they are not.'' For
the reasons expressed in the paragraph above, the equipment
incorporating the fasteners would be substantially similar for early
warning reporting unless the claim specifically identified a non-common
component as the source of the failure.
MEMA stated that the definition should not only be component or
system specific, but application specific as well. It cited a remark in
the Foreign Defect NPRM preamble to the effect that a bolt with a given
part number may perform in substantially different ways depending on
how and where it is used, as well as citing a comment by Breed to the
ANPRM that a component may be used in a variety of applications but
fail in only one. MEMA recommended adopting application language to the
definition:
An item of motor vehicle equipment sold or in use outside the
United States is identical or substantially similar to equipment
sold or offered for sale in the United States if such equipment and
the equipment sold or offered for sale in the United States have one
or more components or systems that are the same, and the component
or system has the same application requirements in vehicles sold or
offered for sale in the United States, regardless of whether the
part numbers are identical.
AIAM recommended as a definition ``equipment that is identical,
except for labeling, markings, or such features as displayed metric vs.
U.S. units of measure, and performs the same function in the respective
vehicles.''
The issue raised by MEMA and AIAM is analogous to that raised by
JPMA, but instead of a defect occurring in a non-common component, it
posits a defect occurring in a common component not used in a common
manner. As such, it does not address the issue raised by JPMA. Further,
it appears to restrict the definition to on-vehicle original and
replacement equipment, and not to include equipment that is not part of
a motor vehicle such as child restraints.
If two items of equipment utilize the same component but that
component is not used to perform the same function, the failure of the
component in one context might have no bearing on the likelihood of its
failure in the other context. However, it might not be clear at the
time the claim is filed whether the component is performing the same
function or not. Therefore, we are reluctant to add this exemption. We
emphasize, however, that we expect to receive very few reports of
claims from equipment manufacturers involving foreign deaths.
We are therefore adopting as new Section 579.4(d)(2):
An item of motor vehicle equipment sold or in use outside the
United States is identical or substantially similar to equipment
sold or offered for sale in the United States if such equipment and
the equipment sold or offered for sale in the United States have one
or more components or systems that are the same, and the component
or system performs the same function in vehicles or equipment sold
or offered for sale in the United States, regardless of whether the
part numbers are identical.
3. Substantially Similar Tires
We proposed that:
A tire sold or in use outside the United States is substantially
similar to a tire sold or offered for sale in the United States if
it has the same model and size designation, or if it is identical in
design except for the model name.
RMA was the sole commenter on the proposed definition. In its
opinion, NHTSA's definition would include tires that are, in fact,
substantially different. It noted that two tires of the same tire line
and with the same size designation could include tires constructed of
different materials. One tire could have a casing made of steel carcass
plies, while another's might be of fabric carcass plies. RMA argued
that comparisons between these tires, for early warning reporting,
would be meaningless, and stated that ``construction'' is the factor
that would best aid in early warning. ``Construction'' to RMA means
``the same number of plies and belts, ply and belt construction and
materials, placement of components, and component materials.'' RMA
proposed the following definition:
A tire sold or in use outside the United States is substantially
similar to a tire sold or offered for sale in the United States if
it has the same size, speed rating, load index, load range (for
light truck tires) and construction irrespective of plant of
manufacture or tire line name.
NHTSA has decided to follow RMA's recommendation in part. We are
integrating the definition of ``construction'' into the text, so that
the regulation (Section 579.4(d)) reads as follows:
(3) A tire sold or in use outside the United States is
substantially similar to a tire sold or offered for sale in the
United States if it has the same size, speed rating, load index,
load range, number of plies and belts, and similar ply and belt
construction and materials, placement of components, and component
[[Page 45845]]
materials, irrespective of plant of manufacture or tire line name.
We have added the word ``similar'' before ``ply and belt
construction and materials'' to assure that minor differences in
dimensions, construction, or materials would not allow tire
manufacturers to avoid reporting of foreign claims involving deaths.
I. Claims Involving Property Damage
Section 30166(m)(3)(A)(i) provides for reporting of ``aggregate
statistical data on property damage'' from alleged defects in the
manufacturer's products.
1. Definition of ``property damage''
In the preamble to the NPRM, we discussed the proposed definitions
of property damage recommended by commenters on the ANPRM. On the basis
of our own review and these comments, we proposed to require only
reporting of claims information and not reporting of incidents
involving only property damage of which a manufacturer receives notice.
See 66 FR 66200.
For purposes of this rule, we proposed that property damage means
``physical injury to tangible property.'' Our proposed definition of
``property damage claim'' would include damage to the vehicle or other
tangible property, but exclude equipment failure and matters solely
involving warranty repairs. For example, if the brakes failed and there
were no physical consequences other than the need to repair the brake
system, there would be no property damage. If there was a brake failure
and the vehicle hit an object, there could be property damage to the
vehicle or object or both. Accordingly, ``property damage claim'' would
mean:
A claim for property damage, excluding that part of a claim, if
any, pertaining solely to damage to a component or system of a
vehicle or an item of equipment itself based on the alleged failure
or malfunction of the component, system, or item, and further
excluding matters addressed under warranty.
Comments were submitted by the Alliance, Nissan, VW, AIAM, the
JPMA, RMA, TMA, Spartan, Utilimaster, and CU.
Nissan stated that the proposed definition of property damage claim
was overly inclusive and potentially difficult to understand. The
comment argued that the proposed definition did not exclude claims
pertaining solely to damage to a component or system of a vehicle based
on the alleged failure. Similarly, Spartan recommended that the
category be redefined to exclude allegations of simple failure or
breakage of a component (such as mechanical breakdown typically covered
by a manufacturer's warranty), since such incidents would likely be
picked up under other categories. Nissan's comment also noted that the
proposed definition does not address damage to one system caused by
another system under normal use, and whether or not the damage occurred
within the warranty period. The company recommended that the proposed
definition of ``property damage claim'' be modified to read: ``a claim
that a part, component or system failure led to crash damage or body
damage to a vehicle or damage to the property of a third party.''
We do not understand Nissan's assertion that the proposed
definition does not exclude claims pertaining solely to damage to a
component or system of a vehicle based on its alleged failure or
Spartan's suggestion that such matters be excluded, because we believe
that they are excluded. Nissan also commented that the proposed
definition does not address damage to one system caused by another
system under normal use, but it does. Damage is excluded from property
damage claims if the damaged component, system, or equipment item has
damaged itself, but not beyond that.
CU expressed concern that a loophole in the reporting requirement
will be created if the definition of property damage does not include
damage to the vehicle component itself. For example, if the brakes
failed after the vehicle warranty had expired and there is no physical
damage to the vehicle other than the need to repair the brakes, NHTSA
would have no way of knowing about this incident. With regard to CU's
comment, the agency notes that the NPRM stated its intention to include
in the definition of property damage ``damage to the vehicle or other
tangible property, but exclude equipment failure and matters solely
involving warranty repairs.'' See p. 66201. The preamble elaborated on
this by stating: ``For example, if the brakes failed and there were no
physical consequences other than the need to repair the brake system,
there would be no property damage.'' Id. The ``loophole'' identified by
CU was therefore an intentional part of the proposed rule, which
assures that property damage claims are not diluted by matters
involving worn out parts without other consequences. Of course, these
matters would normally be reported to us as complaints, and sometimes
as warranty claims.
Spartan recommended that the category be limited to incidents
involving a collision, tire failure, or fire occurring in the United
States in which a defect is alleged in one of the critical safety
systems (brakes, steering, occupant restraint, fuel) and that the
reporting requirement should apply only to claims submitted to the
manufacturer in writing. Spartan provided no rationale for its
recommendation that the category should be limited to the number of
such incidents involving a limited number of safety-related systems.
For each of the covered vehicle classes, the NPRM listed separate
systems and components the alleged failure of which would trigger the
reporting requirements. As the agency explained, in selecting these
systems and components, it ``attempted to identify, for each category
of vehicle, for child restraint systems, and for tires, those systems
and components whose failures are most likely to lead to safety
recalls.'' See preamble at p. 66207. Spartan has not explained why this
approach should be abandoned in favor of one that would require, for
all vehicle classes, reports on only brake, steering, occupant
restraint, and fuel system failures. Finally, because the term
``claim'' would be defined in the proposed rule as ``a written request
or demand for relief,'' Spartan's recommendation that the reporting
requirement should apply only to property damage claims submitted to
the manufacturer in writing has already been addressed in the proposal.
The Alliance recommended that the proposed definition of ``property
damage'' be modified to read: ``(1) physical damage, including damage
by fire, to tangible property of a third party caused by a collision or
an alleged failure or malfunction of a component, system or item, or
(2) body or fire damage to a vehicle caused by an alleged failure or
malfunction of a component, system or item.''
The Alliance's recommended changes would introduce elements of
causation into determinations whether to report. This information might
not be presented in a claim and, thus, the Alliance's formulation could
result in under-reporting. See 66 FR 66195, 66199. Moreover, in the
NPRM, the reporting requirement was based on the term ``property damage
claim,'' which is defined separately from and incorporated the
definition of ``property damage.'' Because the proposed definition of
``property damage claim'' contains language linking the reportable
claims to those alleging malfunctions of components or systems, or to
specific events, it would be redundant if this qualification were also
to be included in the definition of ``property damage,'' as the
Alliance has proposed. Finally, if the Alliance's recommended changes
were adopted, physical damage to the
[[Page 45846]]
property of a third party caused by means other than a collision or an
alleged failure or malfunction of a component or system or to specific
events, and physical damage to a vehicle, other than body or fire
damage, would not be reportable. The Alliance provided no justification
for the changes it recommended in the proposed definition or reasons
why those limiting changes should be adopted. Moreover, it did not show
how the changes would help effectuate the purposes of the early warning
reporting rules.
RMA stated that it did not object to the definition if it can be
interpreted to mean ``* * * a claim for monetary compensation in excess
of the value of the tire.'' Nevertheless, it urged NHTSA to adopt a
separate definition for clarity, to read as follows:
A claim for property damage for motor vehicle equipment means a
claim for property damage, excluding that part of a claim, if any,
pertaining solely to damage to the item of motor vehicle equipment
itself, based on the alleged failure or malfunction of the item of
motor vehicle equipment, and further excluding matters under
warranty.
RMA did not explain why a separate definition was needed. We note
once more that the definition proposed in the NPRM would exclude claims
pertaining solely to damage to an equipment item based on the alleged
failure or malfunction of that item. Creating a separate definition for
equipment items may increase the burden for manufacturers by requiring
analysis of individual claims to ascertain whether they alleged the
failure or malfunction of an equipment item itself, as opposed to the
failure or malfunction of a ``component, system, or item.'' We further
note that eliminating the reference to vehicle components and systems
could increase the reporting burden on manufacturers by narrowing the
scope of claims excluded by definition. In light of these
circumstances, we do not believe that there is a need to separately
define ``property damage claim'' for motor vehicle equipment items, and
will retain the reference to vehicle components and systems within the
definition we are adopting.
The property damage information that we will require manufacturers
to submit is limited to the number of claims involving a limited number
of systems or components, fire, and rollover (to be discussed later).
Thus, the information to be submitted will be ``aggregate statistical
data.'' Therefore, we do not see a need for a separate regulatory
definition of this term.
Finally, as noted above, the proposed definition expressly excludes
``matters addressed under warranty.'' Nissan faults the agency for
failing to address whether or not the damage occurred within the
warranty period. The reason for this exclusion was simple; it was to
eliminate a burden that would amount to double counting. So long as the
matter is covered by warranty (including an extended warranty or good
will program conducted by the manufacturer, as addressed below), it
will be subject to being reported to the agency as a warranty claim. If
the incident leading to a claim occurs beyond the warranty period
(including the terms of any applicable extended warranty or good will
program), and thus is not covered by warranty, it must be reported as a
property damage claim if the elements for such reporting are met.
For the reasons discussed above, we are adopting the definition of
``property damage claim'' that we proposed.
2. Reporting of Property Damage Claims; Whether To Establish Dollar-
Value Thresholds
Unlike reporting of claims and notices of incidents involving
deaths and injuries, which are required even in the absence of
information identifying underlying systems or components, we will
require reporting of property damage claims only when one or more
specified vehicle components or systems has been identified as giving
rise to the incident or damage, or there was a fire (originating in or
from a vehicle or a substance that leaked from a vehicle) or rollover.
We concluded that adding a category such as ``other'' would not provide
us with usable information. These components and systems were selected
based upon their connection to safety recalls in the past, as described
in Section IV.N below. They vary depending on the type of vehicle or
equipment that is the subject of the report.
If the incident that allegedly led to the property damage also
resulted in a death or injury, the manufacturer need only report the
incident as one involving a death or injury, and it will not be
required to report the incident under the property damage requirement.
However, if several separate property damage claims are filed arising
out of the same incident (e.g., because a vehicle damaged property
owned by several individuals), each claim must be included in the
report.
Reports of property damage claims will be submitted in the same
manner as the number of consumer complaints, warranty claims, and field
reports, discussed later. The information will be reported separately
for each make, model, and model year and would be submitted in
electronic form, as discussed in Section VI below. Manufacturers are
not required to submit documents reflecting the extent of the property
damage or the details of the incident that allegedly led to the damage.
(As discussed below, we can require the submission of such documents or
information in a separate request if we decide that further detail is
needed.)
With respect to manufacturers of motor vehicle equipment, we
proposed to require only manufacturers of tires to report property
damage information, noting that it is extremely unlikely that a child
restraint system would contribute to significant property damage.
The preamble to the NPRM stated that the agency was proposing
``that a vehicle manufacturer need not include in its report property
damage claims that are for $1,000 or less, on the ground that this
would exclude minor matters and reduce reporting burdens.'' See
preamble at 66201. However, the proposed regulatory text in the NPRM
did not include a dollar-value threshold for reporting. The NPRM
requested comments on whether it is appropriate to establish such an
exclusion, and if so, what the level should be. Id.
The Alliance stated that there should be a threshold to filter
claims. The comment stated that the threshold should be $2,500 to
filter out the minor fender bender type accidents, and that NHTSA
should periodically raise the threshold to consistently filter minor
claims. AIAM also recommended a $2,500 threshold to exclude minor
claims, and stated that NHTSA should consider periodic review of the
threshold to account for inflation and other relevant changed
circumstances. Volkswagen also supported a $2,500 threshold to exclude
de minimis claims. Nissan stated that the threshold amount should be
higher than $1,000.
TMA stated that the threshold for reporting property damage claims
needs to be related to the purchase price of the vehicle rather than a
fixed price for all vehicles. The comment observed that a $1,000
threshold would not be appropriate for medium and heavy-duty trucks,
which often cost in excess of $100,000. The comment recommended a
$5,000 threshold for these vehicles. The comment also recommended that
the reporting threshold not be relegated to the preamble of the final
rule, but instead be incorporated into the regulatory text.
Utilimaster also stated that the proposed $1,000 threshold for the
submission of property damage claims
[[Page 45847]]
``is too low to avoid sweeping in minor matters NHTSA seeks to avoid.''
The comment stated that the threshold should be raised to $5,000 to
provide the agency with meaningful data on significant incidents.
Spartan also recommended that a dollar threshold be set (at perhaps
$2,500) to limit the reporting of minor claims.
With respect to claims involving tires, the NPRM noted that
``[t]ire manufacturers have historically kept records of all property
damage claims, without regard for the amount of the claim, and that
this information has proven to be very valuable in identifying
potential tire defects.'' See preamble at p. 66201. As a consequence,
the agency stated that it was ``proposing to require tire manufacturers
to report all property damage claims, regardless of the amount of the
claim.'' Id. As noted above, the RMA stated that it would not object to
the proposed definition if it were interpreted to mean a claim for
monetary compensation in excess of the value of the tire.
AIAM commented that according to insurance industry data,
approximately half of all physical loss payments by insurers are for
$1,000 or less. After accounting for the common $500 deductible, the
actual median damage loss is $1,500. Accordingly, AIAM recommended that
NHTSA select a higher threshold, specifically $2,500, and that that
threshold be stated in the definition of ``property damage claim.''
After thoroughly considering the comments, we have concluded that
we should not adopt any dollar-value threshold for the reporting of the
number of property damage claims, and note that no such criterion is
imposed by the TREAD Act. Although the final rule will result in a
higher number of property damage claims being reported to the agency
than there would have been under the proposed threshold of $1,000,
manufacturers will be relieved of the burden to evaluate property
damage claims to determine whether the dollar-value threshold had been
met. This could entail a considerably greater commitment of resources
than if the manufacturer were simply required to report the raw number
of property damage claims it received. Many claims do not include a
dollar value, so if a dollar-value threshold were established, the
follow-up on and reporting of such claims or those that referred to
damage in other than dollar terms would have to be addressed. This also
resolves the knotty issues of whether we should establish different
dollar-value thresholds for different types of vehicles such as
motorcycles and heavy trucks, and how we should do so. However, we may
revisit the issue in a future rulemaking.
With regard to property damage claims involving tires, the RMA
stated that it would not object to the proposed definition if it were
interpreted to mean a claim for monetary compensation in excess of the
value of the tire. The agency notes that under the proposed definition,
a tire manufacturer would not be required to report a property damage
claim relating solely to damage to a tire that is based on the alleged
failure or malfunction of the tire. Moreover, any claim for damage to
the tire itself is likely to be handled within the manufacturer's
adjustment program, and as such, would not be separately reportable to
the agency as a property damage claim.
Tire manufacturers have historically kept records of all property
damage claims, without regard for the amount of the claim, and this
information has proven to be very valuable in identifying potential
tire defects. For these reasons, we proposed, and will require, that
tire manufacturers report all property damage claims, regardless of the
amount of the claim.
J. Consumer Complaints
We proposed to require submission of information about certain
``consumer complaints'' as ``other data'' under Section 30166(m)(3)(B).
1. Definition of ``consumer complaint''
In the NPRM we proposed a definition of ``consumer complaint'' that
included relevant matters and did not overlap with our proposed
definition of ``claim.'' We proposed to define ``consumer complaint''
as follows:
a communication of any kind made by a consumer (or other person) to
a manufacturer expressing dissatisfaction with a product, or
relating the unsatisfactory performance of a product, or any actual
or potential defect in a product, or any event that allegedly was
caused by any actual or potential defect in a product, but not
including a claim of any kind or a notice involving a fatality or
injury.
We explained that the term ``a communication of any kind'' would
primarily include communications that are written but it would also
include oral complaints, such as made through a telephone call, that a
manufacturer memorializes in a document, including an electronic
information system. Our proposed definition would also include
communications in which the owner of a vehicle or item of equipment
that is subject to a defect or noncompliance recall asserted that the
remedy failed to correct the defect or noncompliance.
Our approach was to set forth a multifaceted definition of consumer
complaint and then to limit reporting to safety-related aspects of
vehicles, tires, and child restraint systems. The facets of the
definition included expressions of dissatisfaction with a product or
its performance, and an assertion of a defect or that an event was
caused by a defect. Based on our past experience during defect
investigations, we did not believe that it would be appropriate to
simply require reporting of ``safety-related'' problems, since
manufacturers often have a narrower view of what constitutes a safety-
related problem than we do. As we explained, we would reduce the
likelihood of reporting consumer complaints about non-safety matters by
listing the specific safety-related components and systems with respect
to which complaints must be reported. Finally, the primary distinction
between a ``consumer complaint'' and a ``claim'' is that the former
would not seek monetary or other relief.
Ten comments were submitted on the proposed definition of
``consumer complaint.'' These were from AIAM, the Alliance, GM, CU,
Volkswagen, Nissan, NADA, JPMA, Spartan, and Utilimaster. CU favored
the proposed requirement for the collection of consumer complaint
information. The remaining comments were either opposed to the
collection of this category of information in its entirety, or opposed
the collection of certain types of information within the proposed
definition.
2. The Rationale for Requiring Reports of Consumer Complaints
As we have explained, over the years, NHTSA's Office of Defects
Investigation (ODI) has made productive use of consumer complaints to
manufacturers in its investigations of alleged defects. The problem
experience of owners or operators in the real-world use of their
vehicles and equipment, as reflected in their communications to
manufacturers, has indicated failures of components and systems that
can have an impact on safety. While a given level of complaints
regarding some components or systems may not indicate the existence of
a defect, a higher level might. (This level would vary, depending on
the component or system involved.) Because we have no way to measure
directly, or to count, all failures in the field, the frequency of
consumer complaints (which complement warranty claims and field
reports) can provide valuable indications of possible safety problems
warranting further investigation. Consumer complaints were discussed in
the Congressional hearings that led to the TREAD Act. See,
[[Page 45848]]
e.g., Firestone Tire Recall: Hearing before the Subcommittee on
Telecommunications, Trade and Consumer Protection and the Subcommittee
on Oversight and Investigations of the House Committee on Commerce, (H.
Rpt.106-165; September 6, 2000) (Statement of Dr. Sue Bailey,
Administrator, NHTSA).
After reviewing the comments received on the ANPRM and assessing
the value of consumer complaints to an early warning system, we
proposed requiring manufacturers of 500 or more vehicles as well as all
child restraint system manufacturers to provide aggregated consumer
complaint information to us on a periodic basis, but not to require
copies of such complaints. NHTSA relies heavily on consumer complaint
information in initiating and conducting defect investigations. More
than 75 percent of the investigations conducted by ODI are opened on
the basis of complaints that we receive from individual consumers, or
that are furnished to us by interested third parties, such as consumer
groups, police departments, State vehicle inspectors, and school bus
and other fleets.
After it opens investigations, ODI routinely asks manufacturers to
provide information and copies of consumer complaints on the ``subject
defect;'' also, ODI often asks manufacturers to update complaint
information during the course of the investigation. This sort of
information is very valuable in evaluating whether a defect related to
motor vehicle safety exists in a given vehicle or equipment item. Since
our first litigated defects enforcement case, United States v. General
Motors Corp., 518 F.2d 420, 438 (D.C. Cir. 1975), which held that a
prima facie case of defect can be made by showing a significant, ``non
de minimis number'' of failures of a critical part that is expected to
last for the life of the vehicle, the federal courts have recognized
that consumer complaints can be a valuable source of evidence of the
existence of a safety-related defect in motor vehicles.
ODI's experience has shown that consumers are more likely to report
a problem to the manufacturer than to NHTSA. Historically, the number
of consumer complaints to the manufacturer (either directly or through
dealers) that NHTSA obtains after opening a defect investigation
usually exceeds by a substantial amount the number of complaints that
NHTSA had received directly from consumers prior to opening the
investigation. Also, many consumers do not complain to NHTSA until
after they have complained (unsuccessfully) to the manufacturer.
Although there is no single threshold of consumer complaints about a
particular component or system that will automatically trigger a defect
investigation, it is likely that if it were aware of a relatively large
number of consumer complaints to a manufacturer, ODI might well open
investigations earlier. To the extent that such an investigation led to
a recall, opening it earlier would likely have led to corrective action
at an earlier date and the avoidance of some additional incidents.
Consumer complaints to child restraint system manufacturers have
also consistently far outnumbered those to NHTSA about particular
problems. For example, in November 1996, ODI opened an investigation
into the breakage of harness release buttons in certain infant car
seats. ODI had received four consumer complaints when it opened the
investigation. After writing to the manufacturer and requesting
complaint information, ODI learned that the company had received 328
complaints about the harness release button in those seats. Similarly,
in May 1998, ODI opened an investigation of harness buckle failure in
infant car seats on the basis of two consumer complaints. After writing
to the manufacturer, ODI learned in July 1998, only two months later,
that the company had received 92 complaints. Both of these
investigations led to corrective action by the manufacturers.
We believe that NHTSA's ability to identify potential defects in a
timely manner, and to identify and understand emerging defect trends,
would be greatly strengthened if the agency were to receive information
about consumer complaints relatively shortly after the manufacturer
does. At present, ODI's decisions as to which products should be
investigated are often based on limited information from consumers.
We did not propose to require tire manufacturers to report the
number of consumer complaints. We had concluded, from our experience
with conducting tire investigations, that consumer complaints to tire
manufacturers generally do not contain useful information for analysis
of the alleged problem. For example, tire complaints do not
consistently have full information describing the tire model, size, and
date of manufacture. Without this identification, an analysis of
failure rates and trends is not possible. Far more useful for analysis
of potential defect trends is the tire manufacturer's adjustment
(warranty) and claims data. The adjustment and claims data contain
complete identification of the tire make, line, plant, and date of
production. We have received such data in response to information
requests issued during our defect investigations and find that these
data are far superior than that contained in complaints.
We therefore proposed to require larger motor vehicle
manufacturers, and all child restraint system manufacturers, to report
the number of consumer complaints that the manufacturers have received
about designated components and systems of their vehicles or equipment
during each reporting period. Vehicle manufacturers would also report
complaints about fire. The designated components and systems would be
the same as those on which property damage claims are reported.
We did not propose to require reporting of consumer complaints from
outside the United States at this time. We observed that there are a
number of issues related to foreign complaints, such as manufacturer
review of potentially large numbers of complaints in foreign languages
and NHTSA follow-up use, which dictate against requiring reporting, at
least for the present.
In commenting on the NPRM, a number of commenters repeated their
comments on the ANPRM, which we had previously rejected. AIAM expressed
the opinion that consumer complaints are not valuable; i.e., that they
should be excluded from the reporting rule on the basis that they do
not provide objective information regarding vehicle safety performance
and that they would be expected to provide little, if any, useful
information for an early warning reporting system. The organization
contended that the overwhelming majority of the complaints received by
its members do not relate to safety information, and that the need to
filter this material to provide the agency with safety-related
information would place an unreasonable burden on manufacturers. The
Alliance also questioned the value of consumer complaints in
identifying a defect trend. It contended that consumer complaints are
not technically reliable because they are based on the subjective
observation of a problem by a consumer, and are collected by personnel
who lack sufficient technical training or knowledge to translate the
information provided by consumers into meaningful or accurate component
or system codes.
Several manufacturers offered similar comments. Volkswagen
questioned the reliability of consumer complaints to establish the
existence of a defect trend. The comment urged the agency to exercise
caution in drawing any conclusions from the raw, unfiltered consumer
complaint numbers that
[[Page 45849]]
manufacturers would be required to provide under the proposed rule,
especially since manufacturers would not be given the opportunity to
rebut those numbers. Nissan expressed the opinion that consumer
complaints are often subjective, not technically precise, and difficult
to code for the purpose of providing the agency with meaningful early
warning information because they are generally not linked to
identifiable components or systems, and are not received by technical
personnel. Spartan observed that consumer complaints could cover a
large volume of material that does not affect safety, and are often of
questionable validity, requiring extensive screening to identify useful
information at a considerable expense to the manufacturers. The comment
contended that what useful information there is in this category is
likely to overlap one of the other reporting categories.
The comments that questioned the value of consumer complaints in
identifying potential defect trends did not address the justifications
set forth in the NPRM that we have summarized above. Significantly,
none of the comments on the NPRM refuted the rationale in the NPRM. As
far as the agency is concerned, the utility of consumer complaints for
early warning purposes is not diminished by the fact that they are
based on the observations of vehicle users as opposed to persons with
technical training or experience. Such observations are often what
first alerts the agency to the possible existence of a safety-related
defect, especially when warranty coverage is not or no longer
available. As such, consumer complaints about safety-related systems
and components constitute an essential part of the proposed early
warning reporting system. If the agency were to overlook consumer
complaints in anticipation of receiving a more technically developed
analysis of a potential safety problem from a manufacturer, an entire
mechanism for early warning would be eliminated.
NADA asserted that NHTSA has no need to obtain consumer complaint
information from manufacturers as it has direct access to this kind of
information from complaints made to the agency's Website and to the
Auto Safety Hotline. AIAM also noted that NHTSA already receives
consumer complaint information as militating against the need for
manufacturers to submit this information to the agency. AIAM contended
that the agency's database is a better source of early warning
information than the manufacturer's database because consumers are less
likely to complain to NHTSA about non-safety-related problems. GM
commented that if NHTSA were to eliminate the need for manufacturers to
report on consumer complaints, it could still obtain this information
from vehicle owner's questionnaires (VOQs) that are submitted to the
agency.
As stated in the NPRM, ODI's experience has shown that consumers
are more likely to report a problem to the manufacturer than to NHTSA,
and that many consumers do not complain to NHTSA until after they have
complained unsuccessfully to the manufacturer. See NPRM at p. 66203.
The NPRM further noted that we have observed that the number of
consumer complaints to the manufacturer usually exceeds by a
substantial margin the number of complaints made directly to the agency
before the investigation is opened. Id. The agency observed in the NPRM
that its ``ability to identify potential defects in a timely manner,
and to identify and understand emerging defect trends, would be greatly
strengthened if the agency were to receive information about consumer
complaints relatively shortly after the manufacturer does.'' Id. For
these reasons, although the agency will continue to receive complaints
through the agency's website and the Auto Safety Hotline, manufacturer
complaint data will provide a valuable additional tool for assessing
whether a potential safety-related defect exists.
Other comments questioned the need for consumer complaints to be
separately reported to the agency, on the basis that the information in
this category would duplicate that in other categories manufacturers
would be obligated to report. GM contended that because the proposed
rules define the term ``claim'' so broadly, requiring the separate
reporting of consumer complaints is unnecessary, and increases the
chances of duplicate reporting. GM observed that a single incident
could involve a consumer complaint, a warranty claim, and a lawsuit,
all of which would be required to be reported under the proposed rule.
The Alliance also observed that the consumer complaint database is
likely to have redundancies with other information in other databases.
As a consequence, the comment suggested the agency could establish the
early warning rule without requiring the reporting of consumer
complaint information, and adopt this requirement at a later date if
still had a need for the information.
GM's contention about the overlapping breadth of the definition of
``claim'' is erroneous. In both the NPRM and the final rule a ``claim''
is limited to a written communication seeking some form of relief from
the manufacturer. Thus, a ``claim'' is considerably narrower than the
proposed definition of ``consumer complaint,'' which would encompass
``a communication of any kind * * * expressing dissatisfaction with a
product, or relating the unsatisfactory performance of a product, or
any actual or potential defect in a product, or any event that
allegedly was caused by any actual or potential defect in a product.''
Moreover, the proposed definition explicitly excluded claims, to avoid
double counting.
The agency is unwilling to adopt the recommendation that the
complaint must allege a safety-related defect, as this would unduly
limit the reporting of consumer complaint information that NHTSA is
seeking to collect through the early warning reporting rule. As stated
in the NPRM, based on its past experience with defect investigations,
the agency does not ``believe that would be appropriate to simply
require reporting of `safety-related' problems, since manufacturers
often have a much more narrow view of what constitutes a safety-related
problem that we do.'' See preamble at 66202. If the term ``consumer
complaint'' were limited to complaints specifically alleging a safety-
related defect, communications expressing dissatisfaction with a
product or relating that the product did not perform in a satisfactory
manner would not necessarily be reported to the agency. Such
communications may be equally indicative of a potential safety-related
defect as ones specifically alleging the existence of such a defect.
If we were to adopt such a restrictive definition for the term
``consumer complaint,'' we would deprive ourselves of information that
could be of considerable value in identifying a defect trend. Moreover,
by adopting such a definition, the process of reviewing consumer
complaint information to respond to the reporting requirement would be
transformed for manufacturers into little more than a search for
specific phrases such as ``safety-related defect'' in the
communications they receive, and equip them with the means to
potentially evade the reporting of legitimate complaints. However, we
note that reporting would only be required if the communication
expressing dissatisfaction related to unsatisfactory performance,
related to any actual or potential defect, or any event that allegedly
was caused by any actual or potential defect in a product. Also, it
[[Page 45850]]
must relate to one of the reporting areas (e.g., service brakes). Thus,
contrary to the suggestions of a commenter, consumer complaints on
stain resistance alone are not to be reported.
The Alliance and JPMA recommended that the proposed definition of
``consumer complaint'' be changed to eliminate any reference to those
expressing ``general dissatisfaction'' with a product. JPMA contended
that including complaints such as these would distort the data because
they would have to include everything from complaints about the shell
or pad color, the comfort of the handle, stain resistance of the
fabric, or other general consumer complaints that involve one of the
reportable categories, but can have no possible bearing on a possible
defect trend. The Alliance recommended that if the consumer complaint
reporting requirement is retained, it should be limited to complaints
addressing a problem with a motor vehicle. Similarly, Utilimaster asked
the agency to clarify, either in the preamble of the final rule or in
its regulatory text, that mere suggestions for product improvements,
without reference to a current product deficiency, will not be
considered reportable consumer complaints. The company noted that many
of the consumer complaints that it reviews do not relate to safety
issues or concerns, and that the submission of this type of information
would ``clutter the agency's data bank with irrelevant material.''
The thrust of these comments is unclear, as they appear to address,
at least in substantial part, matters on which reporting would not have
been required under the NPRM. As the agency noted in the NPRM, the fact
that manufacturers would only need to report consumer complaints
relating to specific safety-related components, systems or events
(e.g., fire) will assure that only potential safety-related problems
are included in numerical reports to the agency. See preamble at 66202.
This does not include shell or pad color or similar matters. With
regard to Utilimaster's comment, we note that the proposed definition
of consumer complaint would not encompass communications suggesting a
product improvement that do not refer to a product deficiency. For
example, a communication that a third seat in a minivan should fold
down as opposed to being capable of being removed would not have to be
reported. Accordingly, there is no need to modify the proposed
definition in response to that comment.
GM and Nissan commented that if NHTSA were to require the
submission of consumer complaint information, it should limit the
reporting requirement to complaints that are made to the manufacturer's
office designated to handle consumer complaints. Nissan observed that
this would assure that manufacturers do not have to poll every employee
on a quarterly basis who might have heard from a friend, neighbor or
stranger about some dissatisfaction with a product that might fall
within the proposed definition. GM contended that the proposed
reporting requirement would be unworkable if it required a manufacturer
to memorialize every consumer contact with any of its employees.
The agency is accepting the recommendation by GM and Nissan that it
limit the areas in which a manufacturer must search in ascertaining the
number of complaints it has received. In our view, this includes
communications addressed to the office designated in an owner's manual,
written communications to the corporation that in the ordinary course
are routed to the office that ordinarily processes complaints, oral
communications to offices, such as consumer relations telephone lines,
that ordinarily receive complaints, and electronic communications to
the corporation's web site or to its general e-mail address/account
that ordinarily receives complaints, and, of course, all complaints
actually received by the office that handles such complaints. We have,
accordingly, modified the proposed definition of ``consumer complaint''
to specify that the reportable communications are those made ``to or
with a manufacturer addressed to the company, an officer thereof or an
entity thereof that handles consumer matters, a manufacturer website
that receives consumer complaints, a manufacturer electronic mail
system that receives such information at the corporate level, or that
are otherwise received by a unit of the manufacturer that receives
consumer inquiries or complaints, including telephonic complaints * *
*.'' The agency wishes to emphasize that this definition encompasses
written complaints addressed to the manufacturer generally or to an
officer of the company (e.g., to ``XYZ Company'' or to ``President'' or
to the president by name) and telephonic complaints that, in the normal
course of business, are directed or routed to the office that receives
consumer inquiries or complaints. If we find that this modification
leads to abuses by manufacturers, we will take appropriate action in
the future.
NTEA, representing final stage manufacturers, in its comment to the
ANPRM said that manufacturers should be required to report only about
components for which they are responsible, rather than about all
components in a vehicle about which they may have received complaints.
Since the final rule only requires reporting from manufacturers of 500
or more vehicles per year (other than incidents involving fatalities),
it is likely that few NTEA members will have to submit consumer
complaint information. However, for these that are covered, we note
that the issue of which manufacturer's product is ``responsible'' often
is disputed and is not determinative for early warning purposes.
Moreover, the final stage manufacturer is often the only entity with
which an owner deals. For example, a consumer who experiences a fuel
leak in a vehicle is more likely to complain to the manufacturer of the
completed vehicle than to the manufacturer of the chassis. To assure
that important information is submitted, we are adopting our proposal
to require that each vehicle manufacturer covered by the regulation
report on all consumer complaints (and other specified information)
that it receives.
Separate questions arise with respect to child restraint systems.
We proposed ``to require * * * all child restraint system
manufacturers, to report the number of consumer complaints that the
manufacturers have received about designated components and systems of
their * * * equipment during each reporting period.'' See NPRM at p.
66203. We also stated that we were proposing to require ``all child
seat * * * manufacturers to report aggregated warranty claims data from
the U.S. on certain specified components and systems.'' See p. 66205.
The implication of these statements was that child restraint system
manufacturers, like other manufacturers subject to the proposed
reporting requirements, would separately report consumer complaint and
warranty claims data. Despite the preamble statements, text that would
require the submission of consumer complaint and warranty claims data
was inadvertently omitted from the proposed regulatory text of Section
579.26, specifying the reporting requirements for manufacturers of
child restraint systems.
After JPMA brought this discrepancy to our attention, we orally
confirmed that the preamble statements proposing to require child
restraint system manufacturers to submit both consumer complaint and
warranty claims data reflected the agency's intent, and that the agency
contemplated that this
[[Page 45851]]
information would be separately reported. Thereafter, in its comments,
JPMA recommended that child restraint manufacturers be allowed to
combine the reporting of consumer complaints and warranty claims
because most of these manufacturers routinely treat both categories of
information the same, and therefore capture it in a single database
that cannot reasonably be segregated. To avoid the need to impose an
additional sorting burden on child restraint system manufacturers, we
are requiring reporting on the combined number of consumer complaints
and warranty claims that they receive. Accordingly, for manufacturers
of child restraint systems, we are modifying the text of proposed
Section 579.26 (Section 579.25 in the final rule) by designating
proposed paragraph (c) as paragraph (d), and adding a new paragraph (c)
covering the submission of the combined number of consumer complaints
and warranty claims.
K. Warranty Claims Information
We proposed to require submission of information about certain
``warranty claims'' as ``other data'' under Section 30166(m)(3)(B).
1. Definitions of ``warranty,'' ``warranty claim,'' and ``warranty
adjustment''
We proposed definitions of warranty and warranty claim. After
reviewing various definitions of ``warranty,'' and comments on the
issue, we proposed a definition of warranty based on the definition of
written warranty in the Moss-Magnuson Act, 15 U.S.C. 2301(6), to which
manufacturers are subject. Under that Act, a ``written warranty''
means:
(A) any written affirmation of fact or written promise made in
connection with the sale of a consumer product by a supplier to a
buyer which relates to the nature of the material or workmanship and
affirms or promises that such material or workmanship is defect free
or will meet a specified level of performance over a specified
period of time, or
(B) any undertaking in writing in connection with the sale by a
supplier of a consumer product to refund, repair, replace, or take
other remedial action with respect to such product in the event that
such product fails to meet the specifications set forth in the
undertaking, which written affirmation, promise, or undertaking
becomes part of the basis of the bargain between a supplier and a
buyer for purposes other than resale of such product.
We tailored that definition to the subject matter at issue and
proposed to define ``warranty'' as:
Any written affirmation of fact or written promise made in
connection with the sale or lease of a motor vehicle or motor
vehicle equipment by a manufacturer, distributor, or dealer to a
buyer or lessee that relates to the nature of the material or
workmanship and affirms or promises that such material or
workmanship is defect free or will meet a specified level of
performance over a specified period of time (including any
extensions of such specified period of time), or any undertaking in
writing in connection with the sale or lease by a manufacturer,
distributor, or dealer of a motor vehicle or item of motor vehicle
equipment to refund, repair, replace, or take other remedial action
with respect to such product in the event that such product fails to
meet the specifications set forth in the undertaking.
The normal practice is for dealers to perform the repair or to
provide the replacement and then to submit a claim for reimbursement to
the manufacturer. Accordingly, we proposed that ``warranty claim''
means ``any claim presented to a manufacturer for payment pursuant to a
warranty program, extended warranty program, or good will.''
The Alliance, NADA, Honda, RMA, MIC, Nissan, RVIA, Harley-Davidson,
and Spartan provided comments on this issue.
The Alliance commented that the term ``warranty'' is a term of art
that has significance for other statutes and regulations, so that it is
important not to include in the definition factors that are not part of
a manufacturer's existing warranty system, and it recommended three
changes to NHTSA's proposed definition.
First, it asserted that the definition needs to specify that a
warranty is provided by a manufacturer ``without separate
consideration'' in order to capture what is considered to be a
``warranty'' in the ordinary course of business, and to exclude certain
``insurance-type'' products that can be purchased separately by an
owner. This could reduce the number of warranty claims manufacturers
must report, as it would appear to limit warranty reporting to the
basic warranty offered with the vehicle, rather than include the
optional warranties offered on motor vehicles and motor vehicle
equipment. The Alliance was concerned with ``insurance type'' products
that can be sold separately.
Second, the Alliance contended that the portion of NHTSA's proposed
definition referring to ``repair, refund, or replace'' should be
deleted because it is unclear and appears to include remedial activity,
which the Alliance asserted is not part of the warranty process. It
asserted that including reports on safety or emissions recall activity
would contaminate the system and devalue its ability to predict
possible defect trends.
Finally, the Alliance argued that the reference to ``dealers and
distributors'' should be deleted because they do not have the authority
to alter the terms of a manufacturer's warranty. This would clarify
that repairs under independently provided service contracts are not
reportable. Similar comments were made by NADA, Nissan, Harley-Davidson
and MIC. Nissan added that reporting activities under a warranty
offered by someone other than a ``manufacturer'' would not be
appropriate and would create confusion and unnecessary complications.
Harley-Davidson stated that a warranty claim based upon a warranty
representation or extended service plan offered by a person other than
entities over which the manufacturer has control should be excluded. In
sum, the manufacturers argued that only those warranties authorized and
offered by a manufacturer should be reported.
Thus, the Alliance suggested an alternate definition for
``warranty:''
Any written affirmation of fact or written promise provided
without separate consideration in connection with the sale or lease
of a motor vehicle or motor vehicle equipment by a manufacturer to a
buyer or lessee that relates to the nature of the material or
workmanship and affirms or promises that such material or
workmanship is defect free or will meet a specified level of
performance over a specified period of time (including any
extensions of such specified period of time), but does not include
any written materials related to a notification and remedy campaign
conducted in accordance with Parts 573 and 579.5 of this Chapter.
As for the Alliance's first point, in our view, NHTSA's proposed
definition already excludes third-party ``insurance type'' products.
The definition states that the warranty has to be made ``by the
manufacturer.'' Unless a manufacturer (including one of its
subsidiaries or affiliates) has provided such products, it will not
have to report on them. Furthermore, we see no difference between a
warranty that is offered without separate consideration and one that
does. We realize that there are warranties offered by the manufacturer
for an additional price that offer more coverage than a basic warranty.
Information on claims under such supplemental warranties would be
valuable to NHTSA in spotting a potential defect.
The Alliance's second point concerns the latter part of our
proposed definition of ``warranty'' which would include:
Any undertaking in writing in connection with the sale or lease
by a manufacturer, distributor, or dealer of a motor vehicle or item
of motor vehicle equipment to refund,
[[Page 45852]]
repair, replace, or take other remedial action with respect to such
product in the event that such product fails to meet the
specifications set forth in the undertaking.
This language, with only minor alterations to tailor it to the Vehicle
Safety Act, was taken from the language of the Moss-Magnuson Act's
definition of ``warranty.'' As stated in the preamble to the NPRM, we
believe that most manufacturers should be familiar with this definition
because of the Moss-Magnuson Act's applicability to their warranties.
As a result, we disagree with the Alliance's assertion that this is
unclear. The Alliance offers no basis for disputing the clarity of the
second half of the definition of ``warranty'' that we proposed.
We agree with the Alliance that it would not be appropriate to
report recall work that is accounted for under a manufacturer's
warranty system. Manufacturers should remove those claims that relate
only to work performed under a recall campaign that has been reported
to NHTSA under 49 U.S.C. 30118 and 49 CFR Part 573 (or performed
pursuant to emissions-related recalls under the Clean Air Act).
As for the Alliance's third point, we agree that manufacturer-
provided warranties are distinguishable from other service-oriented
products offered by dealers. A manufacturer is the person responsible
for its warranty on its products. Reimbursement under a service
contract offered by a dealer or a distributor not backed up by a
manufacturer need not be reported to NHTSA. Accordingly, the final
definition of ``warranty'' contains no reference to distributors or
dealers.
RMA suggested that tire manufacturers should be required to report
``warranty adjustments,'' rather than warranty claims, to more
accurately reflect the tire industry's practices and terminology.
``Warranty adjustments'' would be defined to mean ``payment or other
restitution made by a tire manufacturer to a consumer, or to a dealer
in reimbursement for payment or other restitution made to a consumer,
pursuant to a warranty program, extended warranty program, or good
will. In RMA's view, ``When NHTSA seeks warranty information from tire
manufacturers, the data it seeks and reviews is ``warranty adjustment''
data in our terminology, not `warranty claim' data as defined in the
NPRM.'' We believe that RMA's comment is valid, and we are defining
``warranty adjustment'' as follows:
Any payment or other restitution, such as, but not limited to,
replacement, repair, credit, or cash refund, made by a tire
manufacturer to a consumer, or to a dealer in reimbursement for
payment or other restitution to a consumer, pursuant to a warranty
program offered by the manufacturer.
2. Reports Involving Warranty Claims
In the ANPRM, we indicated that we believed that information about
warranty claims can often provide relevant information that indicates
the possible existence of a safety defect. Manufacturers commented on
this. After reviewing these comments and assessing the value of
warranty claims data to the early identification of possible safety
defects, we discussed in some detail in the preamble to the NPRM how,
in the past, warranty information has helped us to detect defects. We
have often found warranty claims to be more valuable than customer
complaints because the customer has identified a problem, a repair
facility (often a manufacturer-franchised dealer) has performed a
repair, and the manufacturer has paid for some of or all the repair.
This information is valuable to NHTSA as an early warning tool in
assessing whether a defect potentially exists. The principal limit on
the value is that after the expiration of the warranty (often three
years or 36,000 miles), this information is no longer generated.
However, at times these programs are extended when there are problems
with the product and at times manufacturers also pay for repairs under
``good will'' programs. We have found that ``good will'' actions
provide valuable information in that manufacturers may choose to
address a perceived problem by extending or liberalizing the terms of a
warranty rather than by conducting a full recall, or by formally
extending the warranty period. In order to aid in the early discovery
of potential defects, the agency believes that the number of good will
claims should be reported along with more ``traditional'' warranty
claims.
The NPRM would have required manufacturers of 500 or more vehicles
annually and all child restraint system and tire manufacturers to
report aggregated warranty claims data from the United States on
certain specified components or systems and fire (as described below).
We proposed defining ``warranty claim'' as ``any claim presented to a
manufacturer for payment pursuant to a warranty program, an extended
warranty program, or good will.'' Thus, warranty claim reporting would
comprise the number of repairs and/or replacements performed free of
charge under warranties, as well as those under formal or informal
extended warranties and good will. We proposed to define ``good will''
as ``the repair or replacement of a motor vehicle or item of motor
vehicle equipment, including labor, paid for by the manufacturer, at
least in part, when the repair or replacement is not covered under
warranty.'' This can occur because the terms of the warranty have
expired, or the issue is outside the terms of the warranty, for
example, when the manufacturer pays or participates in voluntary buy-
backs and Lemon Law buy-backs of vehicles or motor vehicle equipment.
One suggestion made in the comments was that manufacturers should
only report on warranty claims that were paid by the manufacturer. We
agree with this suggestion. Manufacturers receive some incomplete
warranty claims and do not pay them. They generally do not retain
information on warranty claims that are presented to them and not paid.
Thus, unpaid warranty claims would not be within a manufacturer's
database and a manufacturer cannot report information that it does not
have. Furthermore, the TREAD Act precludes NHTSA from requiring
manufacturers to maintain or submit records respecting information not
in their possession. See 49 U.S.C. 30166(m)(4)(B). Since some
manufacturers do not keep records on unpaid warranty claims, NHTSA is
constrained from requiring them to do so. To address this issue, the
final rule defines ``warranty claim'' as ``any claim paid by a
manufacturer, including provision of a credit, pursuant to a warranty
program, an extended warranty program, or good will.''
The Alliance, Nissan, and Spartan commented on the inclusion of
good will in warranty claims. The Alliance noted that NHTSA would
receive a substantial number of good will claims in warranty claims
reports because many Alliance members use their warranty systems to
process them and had no objection to reporting good will claims that
are processed along with warranty claims through the warranty system.
Spartan generally opposed reporting certain good will claims because,
in its view, good will claims are not good indicators of a problem with
a motor vehicle; it contended that claims processed for good will or
``customer satisfaction'' would not provide NHTSA with an accurate
indication of the condition that necessitated the repair. It observed
that a high percentage of claims it received for these purposes are
based on factors involving subjectivity or customer perception, and
when investigated, often result in no problem being found.
[[Page 45853]]
The Alliance did not support reporting good will claims processed
outside the normal warranty system, such as by direct check
reimbursement, because the burden to manually account for and report
these claims would outweigh the value of this data. The Alliance would
exclude vehicle buy-backs under state lemon laws from good will claims.
Spartan raised burden issues as well.
The Alliance also suggested a definition for good will, which was
``the repair or replacement of a motor vehicle or item of motor vehicle
equipment, including labor, any part of which is paid for by the
manufacturer through its warranty administration system, when the
repair or replacement is not covered under warranty.''
The Alliance's and Nissan's recommendation of limiting good will
claims to those processed through a manufacturer's warranty
administration system would exclude good will claims based on direct
check reimbursement from a manufacturer to an owner not tracked within
a manufacturer's warranty administration system and good will claims
paid by manufacturers that provide payments and credits to dealers and
others but do not record good will claims in their warranty systems.
Good will claims not administered through a company's warranty system
provide information as valuable as good will claims that are
administered through that process. We desire to capture as many good
will claims as possible to ensure we have a complete database from
which to identify potential defects.
ODI's experience indicates that most manufacturers capture good
will claims within their warranty systems. It appears to us, therefore,
that the burden of capturing outside good will claims will be limited.
Furthermore, all companies must have some means to track their good
will claims for financial tracking purposes. Consequently, even if the
good will claims are not in a warranty administration system,
ordinarily they would be in another computerized system that could be
accessed and reviewed without significant difficulty. If they were not
entered and maintained in a manner that would provide minimal
specificity, they would not be reported. We cannot estimate the burden
of such review, since the Alliance did not provide any information
about which companies possess good will payments outside their regular
warranty system or the number or percentage of such ``outside'' claims.
Therefore, based upon the foregoing we believe that the definition
of ``good will'' should include all good will claims regardless where
they are processed within the company. We are adopting our proposed
definition of ``good will,'' adding the further clarification that the
repair or replacement is one that is not covered by a safety recall.
Thus, ``good will'' means:
the repair or replacement of a motor vehicle or item of motor
vehicle equipment, including labor, paid for by the manufacturer, at
least in part, when the repair or replacement is not covered under
warranty, or under a safety recall reported to NHTSA under part 573
of this chapter.
Several manufacturers suggested that NHTSA should clarify that it
does not expect manufacturers to report lawsuits or claims for breach
of warranty. We agree that the rule should be clarified to exclude
lawsuits or claims for breach of warranty. As noted above, we are
defining ``warranty claim'' as ``any claim paid by a manufacturer * *
*.'' Thus, the definition does not include unpaid claims such as
lawsuits or claims for breach of warranty. However, if a lawsuit or
claim for breach of warranty is resolved with a monetary payment, it
would become a ``warranty claim'' under our definition, and would have
to be reported.
RVIA suggested that we establish a threshold number or percentage
of claims relating to a particular critical system on a given model
before any reporting is required. We discussed this concept in the
ANPRM, but rejected it because we believe we may lose early information
in the early warning stages and do not have the capability to set such
thresholds.
RMA stated that not all good will claims will be captured in the
categories that tire manufacturers must report on. Therefore, in order
to capture all good will claims, RMA proposed the term ``customer
satisfaction condition'' to capture those good will claims that do not
fit within the categories prescribed by NHTSA. RMA suggested that:
Tire conditions reported in the category ``customer satisfaction
condition'' would include any tire not meeting customer expectations
due to adverse operating conditions, cosmetic conditions, ride
conditions, wear conditions, customer abuse, conditions not directly
related to the tire (e.g. valve lead, bent rim), and the like.
RMA asserted that this category would cover all warranted and non-
warranted (good will) adjustment conditions not included in the four
component categories: tread, sidewall, bead, and other. Thus, RMA
requested NHTSA to add this category to tire manufacturers' reporting
obligation for warranty adjustment data. The RMA comments did not
provide a clear basis for suggesting this additional reporting
requirement, but it subsequently explained that this category would be
used in instances where no specific tire failure was involved, such as
for the three non-failed tires on a vehicle where the customer insisted
on replacing all four tires when only one had failed.
We do not believe that data concerning tires with no failure
condition or with cosmetic, ride, or wear concerns will be useful to
the early detection of safety-related tire defects. Therefore, the
``customer satisfaction condition'' will not be adopted in the final
rule. However, we emphasize that tire failure conditions attributed to
``adverse operating conditions'' or ``customer abuse'' should be
counted in the appropriate category set forth in the rule. For example,
to the extent that tire tread failures are attributed to road hazards
or under-inflation in a manufacturer's warranty adjustment system, the
incidents should still be counted under the tire ``tread'' component
code.
L. Field Reports
As part of its defect investigations, ODI regularly requires
manufacturers to provide ``field reports'' about alleged defects. These
include communications received by a manufacturer from the
manufacturer's staff, a dealer, an authorized service center, or
others, regarding an alleged problem in or dissatisfaction with a
product in use. They are usually prepared by someone with technical
expertise. There are far fewer field reports than consumer complaints,
although practices resulting in the generation of field reports vary
widely among manufacturers. Field reports are not specifically
mentioned in the TREAD Act, but were addressed in the ANPRM. In the
NPRM, we proposed to require submission of the number of field reports,
and the submission of certain categories of such reports, as ``other
data'' under Section 30166(m)(3)(B).
1. Definition of ``field report''
The ANPRM asked for comments on an appropriate definition of
``field report.'' Two broad themes cut across industry responses.
First, respondents stressed the importance of clearly and precisely
defining the term ``field report.'' The Alliance requested that the
term be defined as technical reports by technical staff involving one
or more incidents in the field involving a covered vehicle system on a
vehicle that had been sold. According to other respondents, the term
has numerous meanings within the medium and heavy-duty truck industry
as well as
[[Page 45854]]
among equipment manufacturers and is not well defined across the tire
industry. We were told that the trailer industry, for example, does not
use the term ``field reports.''
The second broad theme in the comments by manufacturers was a
recommendation to limit the number and types of field reports to be
reported to us. The Alliance would limit it to certain technical
reports about an incident (or several similar incidents) that are
prepared by technical representatives. The Alliance would exclude
unverified reports regarding customer complaints that are passed
through to the manufacturer without any technical analysis. Commenters
in the tire industry and the heavy trucking industry indicated that
many of the communications they refer to as field reports deal with
sales, marketing and customer satisfaction programs, which they would
exclude. We agreed with this.
In the NPRM, we concluded that the Alliance's suggested restriction
of the definition to ``technical reports'' that are prepared by
``technical'' employees was not feasible. It would require a definition
of ``technical'' and ``technical report'' and difficult, if not
impossible, assessments of whether the author was a technical employee
and whether the content amounted to a technical report, which could
result in delays, under-reporting, and unnecessary burdens.
There was considerable discussion about whether we should require
the reporting of field reports prepared by a dealer's technicians. The
Alliance recommended including both types of reports in an early
warning system. Some manufacturers, however, felt that reporting of
dealer reports should not be required. We believe that it is important
for us to receive information about such dealer reports received by
manufacturers regarding potential defects because they are a valuable
source of relevant information. Indeed, they are one of the primary
bases upon which manufacturers become aware of potential defects in
their products. We therefore proposed to require reporting of the
cumulative number of field reports prepared both by manufacturers'
employees or representatives and by dealers, including their employees,
involving specified systems and components.
We also proposed to include in our definition of ``field report''
any document received by a manufacturer that was prepared by a person
owning or representing one or more fleets of vehicles. For these
purposes, a fleet would be defined as more than ten vehicles of the
same model and model year. Such reports often contain data on multiple
incidents involving vehicles used by delivery companies (e.g., FedEx,
UPS), rental companies, trucking companies, police departments, and
school districts. Fleet vehicles generally accumulate greater miles
over a given period of time than non-commercial vehicles and therefore
can serve as a valuable source of predictive information for early
warning purposes. Most commenters did not dispute this. The few that
did (Nissan and TMA) likened fleet reports to customer complaints. They
did not demonstrate that fleet vehicles are not subject to extensive
use. Therefore we are adopting it as proposed.
Other definitional issues raised by commenters were whether field
reports should be limited to written communication and to ``non-
privileged'' documents. Under the NPRM, reporting would be required
with regard to documented communications (e.g., those in writing,
entered electronically, or otherwise converted into a document in the
broadest sense of the word). With respect to the issue of privilege, we
recognized that a field report truly prepared in anticipation of
litigation could be considered as work product, and thus ordinarily be
exempt from production in litigation. We believed that the existence of
any such reports should be indicated to us, even though privileged and
work product documents would not have to be submitted.
We agreed that reports relating to sales, marketing, and dealer-
manufacturer relations were not within the definition of field report.
Finally, in addition to proposing that manufacturers report the
number of field reports, we proposed that manufacturers would have to
submit copies of field reports prepared by their employees and
representatives and by fleets. However, manufacturers would not have to
submit copies of field reports prepared by dealers or dealer employees.
On the basis of these considerations, we proposed the following
definition for ``field report:''
A communication in writing, including communications in
electronic form, from an employee or representative of a
manufacturer of motor vehicles or motor vehicle equipment, a dealer
or authorized service facility of such manufacturer, or by an entity
that owns or operates a fleet, to a manufacturer, regarding the
failure, malfunction, lack of durability, or other performance
problem of a motor vehicle or motor vehicle equipment, or any part
thereof, produced by that manufacturer, regardless of whether the
problem is verified or assessed to be lacking in merit.
The Alliance, NADA, RMA, MIC, Ford, GM, Harley-Davidson, and
Utilimaster provided comments on these issues.
The Alliance argued that the definition should be limited to
reports about incidents that occur ``in the field,'' which, in its
view, is generally understood ``to mean incidents involving vehicles in
use by consumers and the public.'' Absent this clarification, the
proposed definition could be viewed as requiring reporting of incidents
involving pre-production prototypes, or results of pre-production
consumer evaluation clinics. Harley-Davidson had a similar comment.
The Alliance also commented that the definition should state that
subsequent internal correspondence about the field incident is not
reportable as another ``field report.'' NHTSA should also state,
according to the Alliance, that ``field report'' does not include a
contact from a dealer seeking technical assistance from the
manufacturer in conducting a repair. For these reasons, the Alliance
suggested that ``field report'' be defined as:
(a) A non-privileged technical report prepared by a
manufacturer's technical staff involving (b) a single incident in
the field or several similar incidents in the field, (c) a covered
vehicle system, and (d) a vehicle (or vehicles) that has been sold
to a purchaser for purposes other than resale.
We agree with the comment by the Alliance and Harley-Davidson that
it is not our intent to include reports involving prototype vehicles
and equipment within the ambit of field reports, and are adding the
phrase ``produced for sale,'' which we find clearer than ``in the
field.'' As for the Alliance's other recommendations, while ``internal
correspondence'' might not fit within the definition of ``field
report,'' there can be, and often will be, multiple field reports about
a particular incident. The information contained in such subsequent
reports can be very valuable in ascertaining whether a possible defect
exists. As for contact from a dealer seeking technical assistance in a
repair, reports on diagnostics would be included within the definition,
but a document reflecting the manufacturer's assistance after the
diagnosis when the dealer's question is how to perform a repair would
not.
MIC suggested that NHTSA define ``field reports'' ``to include
communications received by a manufacturer from the manufacturer's
technical staff, a dealer, and authorized service center, or others,
regarding an alleged problem in or dissatisfaction with a product in
use.'' This is not as clear or as comprehensive as the NPRM
[[Page 45855]]
proposed definition, which covered the failure, malfunction, lack of
durability, or other performance problem of a motor vehicle or motor
vehicle equipment, or any part thereof, produced by that manufacturer.
Also, the MIC formulation does not include the phrase ``regardless of
whether verified or assessed to be lacking in merit.'' It is important
that the scope of the definition be set forth inclusively and that a
manufacturer not be allowed to avoid reporting by denying an underlying
assertion. In the NPRM, we noted that we were reluctant to limit the
definition to include only ``technical'' or ``technical reports''
because it would require us to define those terms and require an
assessment whether the author was a technical employee and whether the
content was a technical report, which could result in delays, under-
reporting, and unnecessary burdens. See 66 FR 66205. With regard to the
MIC comment, the term ``technical staff'' would be equally problematic,
as it is not defined. In any case, there is no need to include the
term, since the MIC comment would include reports from ``others.''
Other industry commenters asserted generally that the proposed
definition of ``field report'' was overbroad and would include
irrelevant and highly sensitive information of no value to early
warning. The commenters expressed concern over the scope of information
that would be considered a ``field report'' under the proposed
definition. The comments suggested a belief that field reports would
include dealer issues, personnel information, commercially sensitive
information, proprietary information, privileged and non-privileged
litigation materials and work product. For instance, NADA emphasized
that the definition should not be construed to cover such dealer-to-
manufacturer communications such as technician assistance, electronic
vehicle reprogramming, service or parts sales/marketing, customer
satisfaction reports, etc. RMA added that the field reports received by
the tire industry are more like consumer complaints and contended that
the agency has already recognized that consumer complaints are
unreliable in judging or predicting tire performance; the comment
asserted that the reporting of field reports would be overly burdensome
to members of the tire industry, and of little or no benefit to the
agency.
The definition of field report that we proposed was intended to
capture the basic concept of field reports utilized by ODI for many
years. In the course of defects investigations, ODI has obtained
information on field reports from manufacturers on a routine and
standard basis, pursuant to numerous information requests. These
industry comments misconstrue what was covered by the proposal. For
example, ``field report'' was not intended to (and, in our view, did
not) cover every dealer-to-manufacturer communication. ``Field report''
did not cover routine parts requisitions, marketing, dealer operation
and relationship issues, company personnel matters or consumer
complaints (which are addressed elsewhere in the rule), and would not
include requests for previously-distributed technical support
documents, such as instructions on installations of specified parts.
``Field report'' also would not include requests for guidance on how to
efficiently perform routine maintenance on difficult-to-access
components, or simple requests for towing (without more). As provided
by the proposed rule, we would require reporting on the numbers of
field reports involving failure, malfunction, lack of durability, or
other performance problems for the categories set forth. The comments
have not demonstrated that this is inappropriate. With regard to the
comment reflecting the belief that field reports would include dealer
and personnel issues, we note that dealer-manufacturer issues that do
not involve defined problems with vehicles are outside the definition
of field report. We have included reports prepared by manufacturers'
representatives because manufacturers' representatives in the field
often are not employees of the manufacturers in a strict legal sense.
The Alliance argued that reports generated by employees and
representatives of a manufacturer that have performed product
evaluations or operated ``company-owned''' vehicles for personal use
should not be considered as field reports. However, such reports often
describe a problem or malfunction and can provide valuable information
regarding possible defects. In fact, many manufacturers use them for
that very purpose. Therefore, we have decided that if such reports
relate to vehicles that were produced for sale, they are encompassed
within the definition of field report.
Some manufacturers expressed concern that the production of field
reports would require a costly and burdensome review of litigation
files and compromise the work product exclusion. Ford and GM asserted
that under the proposed definition of field reports, they would be
required to produce hard copies of draft and final documents in their
litigation files, which would intrude upon the work product exclusion.
Furthermore, Ford argued that even if it were only required to report
numbers, rather than produce hard copies of field reports in its
litigation files, the reporting of these numbers would hamper the
ability of car manufacturers to evaluate product liability cases and
prepare for trial, since it would reveal case strategy and trial
preparation information that would not be disclosed in the litigation
itself. We disagree with Ford's assertion. Ford's assertion overstates
the NPRM's coverage of litigation documents. Documents created for
litigation, such as expert reports, are often not created by a
manufacturer's employee or representative. Nevertheless, although we do
not believe that the proposed definition would cause the range of
problems asserted by Ford and GM, we are concerned about inhibiting the
manufacturers' ability to consult with outside counsel. Therefore, we
are specifying in the final rule that a field report ``does not include
a document contained in a litigation file that was created after the
date of the filing of a civil complaint and relates to the vehicle,
component, or system at issue in the litigation.''
Accordingly, the final rule defines ``field report'' as
A communication in writing, including communications in
electronic form, from an employee or representative of a
manufacturer of motor vehicles or motor vehicle equipment, a dealer
or authorized service facility of such manufacturer, or by an entity
that owns or operates a fleet, to a manufacturer, regarding the
failure, malfunction, lack of durability, or other performance
problem of a motor vehicle or motor vehicle equipment, or any part
thereof, produced for sale by that manufacturer, regardless of
whether verified or assessed to be lacking in merit, but does not
include a document contained in a litigation file that was created
after the date of the filing of a civil complaint that relates to
the vehicle, component or system at issue in the litigation.
2. Reporting and Submission of Field Reports
We proposed that the number of field reports involving specified
components and systems from all sources be reported to us, and that
NHTSA be provided with copies of all field reports from sources other
than dealers.
With respect to numbers, we proposed that manufacturers of 500 or
more motor vehicles and all manufacturers of child restraint systems
and tires report the number of field reports originating in the United
States regarding the same components and systems as they would be
required to report for property damage claims,
[[Page 45856]]
consumer complaints, and warranty claims, as specified in the
regulation. As with these categories of information, reporting would be
done separately for each model and model year, for the ten previous
model years. Consumer complaints that were merely forwarded to the
manufacturer by the dealer without any comment or assessment would not
have to be reported as field reports, but they would have to be
reported as consumer complaints.
The proposal to submit copies of some field reports occasioned
several comments. Under the NPRM, we proposed to require manufacturers
to provide the number of field reports covering only certain vehicle
systems or components, and fire. On the other hand, manufacturers would
have to provide copies of all field reports that are generated by
employees or representatives of the manufacturer or by representatives
of fleets of the manufacturers' vehicles (but not from their dealers).
The Alliance objected to the breadth of the proposed document
submittal, asserting that this would result in over 45,000 field
reports provided to NHTSA from its members alone. The Alliance asked
that any requirement that field reports be submitted be restricted to
those covering the components and systems for which numbers reporting
will be required. We are accepting this suggestion, and are adding
language to paragraph (d) of Sections 579.21-579.25 to address this
point.
The NPRM proposed to require manufacturers to submit copies of
field reports that are generated by employees or representatives of the
manufacturer or by representatives of fleets of the manufacturer's
vehicles. The NPRM would not require copies of reports that are
prepared by dealers or their employees. This reflects an effort to
focus on what are now, in general, the more technically rich documents
(i.e., the manufacturer--as opposed to dealer--generated documents) and
to reduce burdens. Documents in which a manufacturer's representative
or employee raises or analyzes a potential problem have often been
valuable to ODI in identifying a defect. To clarify matters, the final
rule adds language to paragraph (d) of Sections 579.21-579.25 to
clarify that manufacturers are required to submit documents assessing
possible problems and are not required to submit documents regarding
non-safety related issues such as marketing, personnel information,
dealer information, and issues such as dealer technician and roadside
assistance calls. Thus, the only field reports that are to be submitted
are those that contain ``an assessment of an alleged failure,
malfunction, lack of durability, or other performance problem of a
motor vehicle or item of motor vehicle equipment that is originated by
an employee or representative of the manufacturer * * *.''
The Alliance also objected to our proposal to require redaction of
field reports. We proposed to require manufacturers to provide two
copies of each field report covered by the submission requirements: one
complete copy and one from which all personal information about
individuals has been redacted. After reviewing the comments, we have
decided not to adopt such a requirement. To the extent that redaction
is needed, it will be performed by the agency.
Comments raised concerns about commercially sensitive and
proprietary information. Utilimaster complained that competitors might
use the information submitted to NHTSA against one another to gain a
competitive edge. However, manufacturers can request confidentiality
for information submitted to NHTSA pursuant to our regulation entitled
Confidential Business Information, 49 CFR Part 512. Competitive harm is
a basis for granting a request for confidentiality.
RMA argued that the field reports received by the tire industry are
more like consumer complaints and contended that the agency has already
recognized that consumer complaints are unreliable in judging or
predicting tire performance. Its comment also asserted that the
reporting of field reports would be overly burdensome to members of the
tire industry, claiming that ``there is no system available to ``search
out'' such a wide variety of documents, let alone place them in
appropriate categories (tread, bead, sidewall, other),'' and concluding
that ``assuming that a practical and reliable system could be designed,
it would be very expensive to implement.'' RMA asked that tire
manufacturers be excluded from the requirement to report numbers of
field reports.
We disagree with RMA's comment that the agency has deemed consumer
complaints unreliable, and that field reports would be of little or no
benefit to the agency, as we discussed earlier in this document.
However, we have reconsidered our tentative conclusion, as expressed in
the NPRM, that tire manufacturers should be required to report numbers
of field reports to NHTSA (the NPRM had already proposed to exclude
tire manufacturers from providing copies of field reports). On the
basis that tire industry field reports are more like consumer
complaints, it would appear that the information that might be gained
from such reports would be of limited value in detecting safety
problems in tires. If a safety problem is developing in a line of
tires, we believe that the problem is more likely to be detected
through an increase in warranty adjustments than through field reports,
which are better suited to detecting emerging problems in motor
vehicles. Accordingly, the final rule does not require tire
manufacturers to submit either numbers or copies of field reports.
In sum, we are convinced of the utility of field reports as
indicators of potential safety defects, and that the definition, as
modified and clarified, is properly scoped. Therefore, we are revising
proposed paragraph (d) in each of Sections 579.21 and 579.22 to read as
follows:
* * * a copy of each field report (other than a dealer report)
involving one or more of the systems or components identified in
paragraph (b)(2) of this section, or fire, or rollover, containing
an assessment of an alleged failure, malfunction, lack of durability
or other performance problem of a motor vehicle or item of motor
vehicle equipment (including any part thereof) that is originated by
an employee or representative of the manufacturer and that the
manufacturer received during a reporting period. These documents
shall be submitted alphabetically by make, within each make
alphabetically by model, and within each model chronologically by
model year.
These sections relate to field reports for passenger cars and
medium-heavy vehicles including buses. Paragraph (d) of Sections 579.23
and 579.24 relating to field reports for motorcycles and trailers reads
identically except that rollovers are not included. Paragraph (d) of
Section 579.25 relating to field reports for child restraint systems
reads identically except that neither fires nor rollover are included.
M. Customer Satisfaction Campaigns, Consumer Advisories, Recalls, or
Other Activities Involving the Repair or Replacement of Motor Vehicles
or Motor Vehicle Equipment
This aspect of the early warning proposed rule related to
documentation that all manufacturers of motor vehicles and motor
vehicle equipment would have to submit under proposed Section 579.5(b).
This requirement is based upon Section 30166(m)(3)(A)(ii), which
provides for submission of information (derived from foreign and
domestic sources) that concerns ``customer satisfaction campaigns,
consumer advisories, recalls, or other activity involving the repair or
replacement of
[[Page 45857]]
motor vehicles or items of motor vehicle equipment'' (we will use the
term ``campaign'' at times hereafter collectively to refer to all such
actions by the manufacturer). As we stated in the ANPRM, this new
section is broader than 49 CFR 573.8 (2001)(which implements Section
30166(f)), which requires a manufacturer to provide copies of
communications to more than one manufacturer, distributor, dealer,
lessor, lessee, or purchaser regarding ``any defect'' including ``any
failure or malfunction beyond normal deterioration in use, or any flaw
or unintended deviation from design specifications, whether or not such
defect is safety related.''
In the NPRM, we proposed to define the phrase ``customer
satisfaction campaign, consumer advisory, recall, or other activity
involving the repair or replacement of motor vehicles or motor vehicle
equipment,'' to mean:
Any communication by a manufacturer to, or made available to,
more than one dealer, distributor, lessor, lessee, other
manufacturer, or owner, whether in writing or by electronic means,
relating to (1) repair, replacement, or modification of a vehicle,
component of a vehicle or item of equipment, or a component thereof
(2) the manner in which a vehicle or equipment is to be maintained
or operated, or (3) advice or direction to a dealer or distributor
to cease the delivery or sale of specified models of vehicles or
equipment.
We included communications related to operation and maintenance
because they may relate to a potential defect. For example, a warning
sent to owners not to turn on the wipers when the windshield has snow
on it may indicate a wiper defect.
The proposed definition would not include routine marketing
documents or documents relating to surveys of owner satisfaction. It
would include all notifications, product improvement or technical
service bulletins, advisories, and other communications regarding the
subject matter that are issued to, or made available to, more than one
vehicle or equipment dealer, distributor, lessor, lessee, other
manufacturer or owner involving any systems or components in the
vehicle or equipment, not merely the specified components for which
reports must be submitted regarding property damage claims, consumer
complaints, warranty claims, or field reports. This would include any
category of information relating to the replacement or repair of a
vehicle or vehicle component, or the way a vehicle or vehicle equipment
item is to be maintained or operated, whether or not there has been any
determination by the manufacturer that these actions pertain to or are
being undertaken because of a defect or a safety-related concern.
In our view, this requirement is similar to although somewhat
broader than the notices, bulletins, and other communications that for
years have been required to be submitted by 49 CFR 573.8 (2001). Under
Section 573.8, a manufacturer might argue that a condition that was the
subject of a communication to dealers or others did not rise to the
level of a ``defect'' or ``malfunction,'' and that it therefore did not
have to provide copies of such a communication to NHTSA. Under early
warning reporting, it would have to provide these related notices
regardless of whether a ``defect'' potentially was indicated.
Nevertheless, because of these similarities, we proposed to
implement this aspect of early warning reporting by including it in the
same section as current Section 573.8, which is being moved to a new
Section 579.5. This new Section 579.5 would also apply to all
manufacturers of vehicles and equipment, which are currently required
to submit copies of similar communications to NHTSA on a monthly basis.
We anticipate that there will be relatively few documents covered by
this proposal that would not have been covered under Section 573.8. We
also proposed to require a cover letter for each monthly submission of
documents required to be submitted under proposed Section 579.5 that
identifies each communication in the submission by name or subject
matter and date.
If a communication falls within the category described in both
Section 579.5(a) and Section 579.5(b), it will only have to be
submitted once.
MEMA, SEMA, the Alliance, AIAM, NADA, and Utilimaster commented on
the proposed definition. All asserted that the definition is too broad.
The Alliance stated that the information that NHTSA obtains under
the existing Sections 573.5(c)(9) and 573.8 should be sufficient and
would be `` * * * virtually all of the information proposed to be
required by the proposed Part 579.5.'' NADA is also concerned that the
definition is overly broad, noting that ``the purpose of Section
30166(m)(3)(A)(ii) of the TREAD Act was to require manufacturers to
report on service or repair `campaign' activities beyond those falling
within Section 30166(f), not to require every day-to-day manufacturer-
dealer service/repair/ and parts communication.'' NADA suggested that
the definition be restricted to ``campaigns'' and that ``non-`Campaign'
communications involving business information (sales promotions,
financials, etc.), normal service and repair information, tools and
equipment information, etc. should not be covered.'' NADA would also
limit the information to ``safety-related issues,'' commenting that
``Clearly, `campaign' communications involving radio tuning features or
leather seating color fade should not have to be reported.''
We acknowledged the breadth of the definition in both the ANPRM and
NPRM (see p. 66206), saying that `` * * * this new section is broader
than 49 CFR 573.8 (2001) (which implements Section 30166(f) * * * .''
However, we also stated that ``the proposed definition would not
include routine marketing documents or documents relating to surveys of
owner satisfaction.'' See p. 66207.
The first part of the definition, covering repair or replacement of
a vehicle or equipment was derived from 49 U.S.C. 30166(m)(3)(A)(ii).
The second part of the definition, ``the manner in which a vehicle
or equipment is to be maintained or operated,'' could, as acknowledged
in the preamble, cover a number of issues that are not necessarily
safety-related. The Alliance, AIAM, Utilimaster, SEMA, and MEMA
commented that this might require manufacturers to submit
communications on a wide variety of topics that have no safety-related
relationship. Utilimaster asserted that instructions to the owners
either at delivery of the vehicle such as in an owner's manual or in a
follow-up communication, should be omitted. It believes that the agency
would become ``* * * an instructional manual repository requiring
storage facilities of heroic proportions * * *.'' We agree with a
concern expressed in the comment. We do not view the routine provision
of instructional documents with new products as a ``communication'' of
the kind that would assist in the identification of defects relating to
motor vehicle safety. Ordinarily, manufacturers do not knowingly
produce defective products and instruct owners in how to avoid
triggering the defect. What may be important to safety under the rule
are post-sale advisories sent to owners that may run counter to the
instructions initially given, such as a change in recommended tire
pressures, or a shortened maintenance schedule. MEMA recommended that
``the manner in which a vehicle or equipment is to be maintained and
operated'' be revised to address only post-sale conditions and have the
following inserted: ``(excluding materials such as promotional
information, operating instructions, or
[[Page 45858]]
owner's manuals which accompany the vehicle or equipment at the time of
first sale).'' We agree with the thrust of this recommendation.
SEMA and MEMA are concerned that equipment manufacturers would have
to report many communications that would be of virtually no value. To
address this, we are modifying the second part of the definition to
apply to only those equipment manufacturers who produce child restraint
systems. Instead of the phrase ``the manner in which a vehicle or
equipment is to be operated,'' that we proposed, we are adopting the
phrase ``the manner in which a vehicle or child restraint is to be
operated.''
No one commented specifically about the third part of the
definition, the phrase ``advice or direction to a dealer or distributor
to cease the delivery or sale of specified models of vehicles or
equipment,'' and we are retaining it in the final definition.
For the reasons stated above, the final rule contains the following
definition of ``customer satisfaction campaign, consumer advisory,
recall, or other activity involving the repair or replacement of motor
vehicles or motor vehicle equipment:''
any communication by a manufacturer to, or made available to, more
than one dealer, distributor, lessor, lessee, other manufacturer, or
owner, whether in writing or by electronic means, relating to
repair, replacement, or modification of a vehicle, component of a
vehicle, item of equipment, or a component thereof, the manner in
which a vehicle or child restraint system is to be maintained or
operated (excluding promotional and marketing materials, customer
satisfaction surveys, and operating instructions or owner's manuals
that accompany the vehicle or child restraint system at the time of
first sale), or advice or direction to a dealer or distributor to
cease the delivery or sale of specified models of vehicles or
equipment.
N. Components and Systems Covered by Reports.
As discussed in Section III.B above, we proposed five discrete
vehicle categories, and are adopting four of them in the final rule,
having consolidated buses with medium-heavy vehicles. We attempted to
identify, for each category of vehicle, for child restraint systems,
and for tires, those systems and components whose failures are most
likely to lead to safety recalls. These are the systems and components
on which it is most important that we obtain timely information
regarding failures, as compared to failures that are not related to
safety or those that rarely, if ever, lead to safety recalls.
In identifying these vehicle systems and components, we requested
the Volpe National Transportation Systems Center (Volpe) to conduct an
analysis of past defect recalls. For each category of vehicle, Volpe
looked at, among others, the total number of defect recalls associated
with various vehicle-specific systems and components, the number of
vehicles covered by those recalls, the number of recalls influenced by
ODI investigations, and the number of recalled vehicles influenced by
ODI investigations.
The study provided information on different components and systems
implicated in recalls for light vehicles, medium-heavy vehicles, buses,
motorcycles, and trailers. A copy of the study, which includes a
description of the methodology, is in the docket. The underlying data
are in NHTSA's DIMS II database, the relevant portions of which can be
searched by the public through the NHTSA website. The components and
systems are identified below as part of the discussion on reporting
requirements.
For light vehicles, we proposed to require manufacturers to
separately report the number of problems/incidents related to steering,
suspension, service brakes, parking brakes, engine and engine cooling
system, fuel system, power train, electrical system, lighting, visual
systems, climate control system including defroster, airbags (including
but not limited to frontal, side, head protection, and curtains that
deploy in a crash), seat belts (including anchorages and other related
components), structure (other than latches), seats, engine speed
control including throttle and cruise control, integrated child
restraint systems, latches (door, hood, hatch), tires, wheels, trailer
hitches and related attachments, and the number of incidents in which
there was a fire. For incidents of death and injury only, if another
system or component is allegedly involved or if the system or component
is not specified in the claim or notice, the incident would be
included, and ``other'' would be specified.
For medium-heavy vehicles and for buses/school buses, we proposed
to require manufacturers to separately report the number of problems/
incidents relating to steering, suspension, service brakes, parking
brake, engine and engine cooling system, fuel system, power train,
electrical system, lighting, visual systems, climate control system
including defroster, airbags (including but not limited to frontal,
side, head protection, and curtains that deploy in a crash), seat belts
including anchorages and other related components, structure (other
than latches), seats, engine speed control including cruise control,
latches (door, hood, hatch), tires, wheels, trailer hitches and related
attachments, engine exhaust system, the number of incidents in which
there was a fire, and, for incidents of death only, if another system
or component is allegedly involved or if the system or component is not
specified in the claim or notice. Because manufacturers of medium-heavy
vehicles and buses would be required to report problems with the same
identified components, we have decided to consolidate them into a
single category.
In the final rule, we have decided to reduce the burden upon light
vehicle manufacturers by not requiring separate reports involving
integrated child seat systems (which are now included in the definition
of seats), or by requiring reporting on trailer hitches and climate
control systems. We are also not requiring medium-heavy vehicle and bus
manufacturers to report on climate control systems. As discussed below,
however, both types of manufacturers will have to separately report
incidents, etc., involving rollover.
For trailers, we proposed to require manufacturers to separately
report the number of problems/incidents relating to suspension, service
brakes, parking brakes, electrical system, lighting/horns/alarms,
climate control systems (including fuel systems in camping/travel
trailers), structure (other than latches), latches, tires, wheels,
trailer hitches and related attachments, the number of incidents in
which there was a fire, and, for incidents of death only, if another
system or component is allegedly involved or if the system or component
is not specified in the claim or notice. In the final rule, we are
retaining all these proposed systems and components except for climate
control systems.
Finally, for motorcycles, we proposed to require manufacturers to
separately report the number of problems/incidents relating to
steering, suspension, service brakes, engine and engine cooling system,
fuel system, power train, electrical system, lighting, structure,
engine speed control (including throttle and cruise control), wheels,
tires, the number of incidents in which there was a fire, and, for
incidents of death only, if another system or component is allegedly
involved or if the system or component is not specified in the claim or
notice. In the final rule, we are retaining all
[[Page 45859]]
these proposed systems and components.
With respect to reporting of incidents involving deaths and
injuries, if the component or system identified in the claim or notice
is other than a component or system for which reporting is specified,
the manufacturer will enter the code ``98.'' If the component or system
is not specified in the claim or notice (i.e., is unknown to the
manufacturer), the manufacturer shall use the code ``99.'' (Other code
numbers are discussed later.)
For incidents involving deaths and/or injuries, we have added a
column with the heading of ``ID.'' Manufacturers must identify each
separate incident with a unique, consecutive number. This will allow
both ODI and the manufacturer to readily identify and refer to a
specific incident. This will be particularly useful in those rare cases
in which a manufacturer needs to update the incident report (as
discussed below).
We proposed definitions for many of the systems and components for
which reporting would be required. While we believed that these
definitions were straight forward and self-explanatory, we requested
comments on their accuracy and completeness. In some instances, we did
not propose definitions because the need for a definition had not been
clear, based on the ANPRM. However, in light of the comments on the
NPRM requesting greater specificity, we are setting forth definitions
for each category for which reporting will be required. In some cases,
these are based on definitions recommended by the Alliance in its
comments.
01. We did not propose a definition for ``Steering System'' in the
NPRM. For the final rule, we have defined ``Steering System'' to mean
all steering control system components, including the steering
system mechanism and its associated hardware, the steering wheel,
steering column, steering shaft, linkages, joints (including tie-rod
ends), steering dampeners, and power steering assist systems. This
term includes a steering control system as defined by FMVSS No. 203
and any subsystem or component of a steering control system,
including those components defined in FMVSS No. 204. This term also
includes all associated switches, control units, connective elements
(such as wiring harnesses, hoses, piping, etc.), and mounting
elements (such as brackets, fasteners, etc.).
This definition generally follows the language suggested by the
Alliance. It should be noted that the Alliance recommended joining
steering, suspension, and wheels together in a single category,
believing that the systems overlap. While we recognize that the three
areas are related, we believe they are more properly subdivided into
discrete categories that can be analyzed separately. Otherwise, unusual
problems in one area might be masked by normal problem experience in
the other areas.
02. ``Suspension System'' means
all components and hardware associated with a vehicle suspension
system, including the associated control arms, steering knuckles,
spindles, joints, bushings, ball joints, springs, shock absorbers,
stabilizer (anti sway) bars, and bearings that are designed to
minimize the impact on the vehicle chassis of shocks from road
surface irregularities that may be transmitted through the wheels,
and to provide stability when the vehicle is being operated through
a range of speed, load, and dynamic conditions. The term also
includes all electronic control systems and mechanisms for active
suspension control, as well as all associated components such as
switches, control units, connective elements (such as wiring
harnesses, hoses, piping, etc.) and mounting elements (such as
brackets, fasteners, etc.).
This is essentially the definition that we proposed. Our definition
as adopted incorporates the Alliance recommendation, except that, as
noted above, we have divided steering, suspension, and wheels into
three separate categories. We have also expanded this definition
slightly to include electronic control systems and mechanisms for
active suspension control, as well as all associated components such as
switches, control units, connective elements (such as wiring harnesses,
hoses, piping, etc.), and mounting elements (such as brackets,
fasteners, etc.).
03, 04. We did not propose a definition of ``Service Brake System''
in the NPRM. After reviewing the Alliance's suggested definition, we
have decided that this term will mean
all components of the service braking system of a motor vehicle
intended for the transfer of braking application force from the
operator to the wheels of a vehicle, including the foundation
braking system, such as the brake pedal, master cylinder, fluid
lines and hoses, braking assist components, brake calipers, wheel
cylinders, brake discs, brake drums, brake pads, brake shoes, and
other related equipment installed in a motor vehicle in order to
comply with FMVSS Nos. 105, 121, 122, or 135. This term also
includes systems and devices for automatic control of the brake
system such as antilock braking, traction control, stability
control, and enhanced braking. The term includes all associated
switches, control units, connective elements (such as wiring
harnesses, hoses, piping, etc.), and mounting elements (such as
brackets, fasteners, etc.).
This definition is similar to that suggested by the Alliance,
except that the parking brake has been placed in a separate category.
As discussed above, manufacturers of medium-heavy vehicles, buses,
and trailers must subdivide their reports on service brake system
issues into ``hydraulic'' and ``air'' brake systems. Code 03 should be
used to refer to hydraulic service brakes on these vehicles and all
service brake reports on light vehicles and motorcycles. Code 04 should
be used to refer to air service brake systems on medium-heavy vehicles,
buses, and trailers utilizing air service brakes or air-over-hydraulic
brake systems. If a medium-heavy vehicle, bus, or trailer has a type of
service brake system not readily categorized as an ``air'' or
``hydraulic'' brake system (e.g., electric brakes), the manufacturer
should indicate hydraulic service brakes on its report (Code 03).
05. We are adopting the definition we proposed for ``Parking
Brake,'' with certain revisions recommended by the Alliance. ``Parking
Brake'' means
a mechanism installed in a motor vehicle which is designed to
prevent the movement of a stationary motor vehicle, including all
associated switches, control units, connective elements (such as
wiring harnesses, hoses, piping, etc.), and mounting elements (such
as brackets, fasteners, etc.).
This term does not include automatic transmission interlock
components or pawls. Those components are part of the power train,
which is addressed separately. Contrary to the Alliance's suggestion,
we believe that the function and performance of the parking brake is
sufficiently distinct to warrant separate reporting, even though
certain elements of the service brake system may be shared by the
parking brake. Where there is doubt, the manufacturer should attribute
the incident to the vehicle's service brake system.
06. We did not propose a definition for ``Engine and Engine
Cooling.'' The Alliance contended that the category is unneeded because
incidents that would be reported under it would be reported under other
categories. The Alliance asserted, however, that if this were to be
maintained as a separate category, the definition needs to clarify
where the fuel system ends and the engine begins. To do so, we are
defining ``Engine and Engine Cooling'' to mean
the component (e.g., motor) providing motive power to a vehicle, and
include the exhaust system (including the exhaust emission system),
the engine control unit, engine lubrication system, and the
underhood cooling system for that engine. This term also includes
all associated switches, control units, connective elements (such as
wiring harnesses, hoses, piping, etc.), and mounting elements (such
as brackets, fasteners, etc.).
[[Page 45860]]
07, 08, 09. We did not propose a definition for ``Fuel System'' in
the NPRM. However, we have developed a definition based on the
Alliance's recommendation. ``Fuel System'' means
all components used to receive and store fuel, and to transfer fuel
between the vehicle's fuel storage, engine, or fuel emission
systems. This term includes, but is not limited to, the fuel tank
and filler cap, neck, and pipe, along with associated piping, hoses,
and clamps, the fuel pump, fuel lines, connectors from the fuel tank
to the engine, the fuel injection/carburetion system (including the
fuel injector rails and injectors), and the fuel vapor recovery
system(s), canister(s), and vent lines. The term also includes all
associated switches, control units, connective elements (such as
wiring harnesses, hoses, piping, etc.), and mounting elements (such
as brackets, fasteners, etc.).
For medium-heavy vehicles and buses, manufacturers must report
separately for vehicles powered by gasoline (07), diesel (08), and
other (09) types of fuel. For light vehicles and motorcycles, all fuel
system reports shall be coded as 07.
10. We are defining ``Power Train'' to mean
the components or systems of a motor vehicle which transfer motive
power from the engine to the wheels, including the transmission
(manual and automatic), gear selection devices and associated
linkages, clutch, constant velocity joints, transfer case,
driveline, differential(s), and all driven axle assemblies. The term
also includes all associated switches, control units, connective
elements (such as wiring harnesses, hoses, piping, etc.), and
mounting elements (such as brackets, fasteners, etc.).
This was essentially the definition we proposed. The Alliance
agreed with it, but suggested adding the clarifying exclusion that it
``does not include any component of the suspension or steering
system.'' We believe that this is unnecessary, as neither the
suspension nor the steering system ``transfer motive power from the
engine to the wheels.'' For consistency with other definitions, as
discussed above, we are adding a reference to ``all associated
switches, control units, connective elements (such as wiring harnesses,
hoses, piping, etc.), and mounting elements (such as brackets,
fasteners, etc.).''
11. We did not propose a definition of ``Electrical System.'' We
are adopting the definition suggested by the Alliance, except that we
are adding a specific reference to the ignition system, and, for
consistency, a reference to ``all associated switches, control units,
connective elements (such as wiring harnesses, hoses, piping, etc.),
and mounting elements (such as brackets, fasteners, etc.).'' Therefore,
``Electrical System'' means
any electrical or electronic component of a motor vehicle that is
not included in one of the other enumerated reporting categories,
and specifically includes the battery, battery cables, alternator,
fuses, and main body wiring harnesses of the motor vehicle and the
ignition system, including the ignition switch and starter motor.
The term also includes all associated switches, control units,
connective elements (such as wiring harnesses, hoses, piping, etc.),
and mounting elements (such as brackets, fasteners, etc.).
12. We did not propose a definition of ``Exterior Lighting'' in the
NPRM. For clarity, we are defining ``Exterior Lighting'' to mean
all the exterior lamps (including any interior-mounted center
highmounted stop lamp if mounted in the interior of a vehicle),
lenses, reflective systems, and associated components of a motor
vehicle, including all associated switches, control units,
connective elements (such as wiring harnesses, piping, etc.), and
mounting elements (such as brackets, fasteners, etc.).
The Alliance recommended not including a category regarding
lighting as a separate component/system and was concerned about how, if
included, ``lighting'' would be distinguished from ``Electrical
System.'' This definition addresses the questions posed by the
Alliance. Compare with Item 11 above.
13. We proposed a definition of ``Visual Systems'' which we are
calling ``Visibility'' in the final rule. Visibility means
the systems and components of a motor vehicle through which a driver
views the surroundings of the vehicle including windshield, side
windows, back window, and rear view mirrors, and systems and
components used to wash and wipe windshields and back windows. This
term includes those vehicular systems and components that can affect
the ability of the driver to clearly see the roadway and surrounding
area, such as the systems and components identified in FMVSS No.
103, 104, and 111. This term also includes the defogger/defroster
system, the heater core, blower fan, windshield wiper systems,
mirrors, windows and glazing material, heads-up display (HUD)
systems, and exterior view-based television systems, but does not
include exterior lighting systems which are defined under
``Lighting.'' The term also includes all associated switches,
control units, connective elements (such as wiring harnesses, hoses,
piping, etc.), and mounting elements (such as brackets, fasteners,
etc.).
The Alliance suggested that it was not necessary to establish this
as a separate code. However, the components and systems covered under
this definition, encompassing wipers, washers, and defrosters as well
as the windows, have often been the subject of defect investigations
and recalls, and problems in this area should be reported.
14. We did not propose a definition for ``Air Bags,'' but have
provided one here for clarity. The definition incorporates the
definition suggested by the Alliance, but is somewhat broader. We did
not intend to limit the specific definition to relate only to ``Air
Bags,'' but also to address all automatic safety restraint systems.
Therefore, for purposes of this rule, ``Air Bags'' means
an air bag or other automatic occupant restraint device (other than
a ``seat belt'' as defined in this subpart) installed in a motor
vehicle that restrains an occupant in the event of a vehicle crash
without requiring any action on the part of the occupant to obtain
the benefit of the restraint. This term includes inflatable
restraints (front and side air bags), knee bolsters, and any other
automatic restraining device that may be developed that does not
include a restraining belt or harness. This term also includes all
air bag-related components, such as the inflator assembly, air bag
module, control module, crash sensors, and all hardware and software
associated with the air bag. This term includes all associated
switches, control units, connective elements (such as wiring
harnesses, hoses, piping, etc.), and mounting elements (such as
brackets, fasteners, etc.).
15. We did not propose a definition for ``Seat Belts,'' but one is
now provided for clarity. We have incorporated the definition suggested
by the Alliance. ``Seat Belts'' means
any belt system, other than an air bag, that may or may not require
the occupant to latch, fasten, or secure the components of the seat
belt/webbing based restraint system to ready its use for protection
of the occupant in the event of a vehicle crash. This term includes
the webbing, buckle, anchorage, retractor, belt pretensioner
devices, load limiters, and all components, hardware and software
associated with a non-automatic seat belt system addressed by FMVSS
Nos. 209 or 210. This term also includes integrated child restraint
systems in vehicles, and includes any device (and all components of
that device) installed in a motor vehicle in accordance with FMVSS
No. 213, which is designed for use as a safety restraint device for
a child too small to use a vehicle's seat belts. This term includes
all vehicle components installed in accordance with FMVSS No. 225.
This term also includes all associated switches, control units,
connective elements (such as wiring harnesses, hoses, piping, etc.),
and mounting elements (such as brackets, fasteners, etc.).
16. We are adopting a definition of ``Structure,'' as
any part of a motor vehicle that serves to maintain the shape
and size of the vehicle, including the frame, the floorpan, the
body, bumpers, doors, tailgate, hatchback, trunk lid, hood, and
roof. The term also includes all associated mounting elements (such
as brackets, fasteners, etc.)
[[Page 45861]]
The Alliance did not believe a separate category for ``structure''
was necessary. However, we believe that it is important to obtain
information about problems with a vehicle's structure, since many other
systems and components attach to the structure.
17. We are adopting a definition of ``Latch'' to mean
a latching, locking, or linking system of a motor vehicle and
all its components fitted to a vehicle's exterior doors, rear hatch,
liftgate, tailgate, trunk, or hood. This term includes, but is not
limited to, devices for the remote operation of a latching device
such as remote release cables (and associated components), electric
release devices, or wireless control release devices, and includes
all components covered in FMVSS No. 206. This term also includes all
associated switches, control units, connective elements (such as
wiring harnesses, hoses, piping, etc.), and mounting elements (such
as brackets, fasteners, etc.).
As a modification of the definition we proposed, we have added
``locking'' and ``linking'' to ``latching,'' since latching systems, as
a general rule, include linking and locking components. As modified,
this definition incorporates the recommendations made by the Alliance.
18. We are adopting the definition we proposed for ``Vehicle Speed
Control,'' which means
the systems and components of a motor vehicle that control
vehicle speed, either by command of the operator or by automatic
control, including, but not limited to, the accelerator pedal,
linkages, cables, springs, speed control devices (such as cruise
control) and speed limiting devices. This term includes, but is not
limited to, the items addressed by FMVSS No. 124, and includes all
associated switches, control units, connective elements (such as
wiring harnesses, hoses, piping, etc.), and mounting elements (such
as brackets, fasteners, etc.).
19. We did not propose a definition of tire, but are adopting one
in the final rule. ``Tire'' means
an item of motor vehicle equipment intended to interface between
the road and a motor vehicle. The term includes all the tires of the
vehicle, including the spare tire. This term also includes tire
valves, tubes, and tire pressure monitoring and regulating systems,
as well as all associated switches, control units, connective
elements (such as wiring harnesses, hoses, piping, etc.), and
mounting elements (such as brackets, fasteners, etc.).
20. We did not propose a definition of ``Wheel'' in the NPRM. For
clarity, we are defining the term ``Wheel'' to mean
the assembly or component of a motor vehicle to which a tire is
mounted. The term includes any item of motor vehicle equipment used
to attach the wheel to the vehicle, including inner cap nuts and the
wheel studs, bolts, and nuts.
The Alliance recommended incorporating the ``Wheel'' component with
``Steering'' and ``Suspension,'' but, as discussed above, we believe
that it is more appropriate to separate these categories.
21. We did not propose a definition of ``Trailer Hitch.'' By
``Trailer Hitch'' we mean
all coupling systems, devices, and components thereof, designed
to join or connect any two motor vehicles. This system also includes
any associated switches, control units, connective elements (such as
wiring harnesses, hoses, piping, etc.), and mounting elements (such
as brackets, fasteners, etc.).
We are requiring reports on trailer hitches only for medium-heavy
vehicles/buses and trailers, even though some light vehicles contain
such hitches. Manufacturers of light vehicles and motorcycles are not
required to report on trailer hitches because most of the hitches for
these vehicles are installed by dealers or installed by the owner as an
aftermarket add-on. As such, they are equipment items. No commenter
addressed this component.
22. We did not propose to define ``Seats.'' By ``Seats,'' we mean
all components of a motor vehicle that are subject to FMVSS Nos.
202, 207, and S9 of 209, including all electrical and electronic
components within the seat that are related to seat positioning,
heating, and cooling. This term also includes all associated
switches, control units, connective elements (such as wiring
harnesses, hoses, piping, etc.), and mounting elements (such as
brackets, fasteners, etc.).
This definition is based on the definition provided by the Alliance.
23. The Alliance did not agree with our proposed definition of
``fire,'' and suggested that ``fire'' be defined as ``a rapid,
persistent chemical change that releases heat and light and is
accompanied by flame, especially the exothermic oxidation of a
combustible substance.'' We had proposed that ``fire'' be defined as
``combustion of any material in a vehicle as evidenced by, but not
limited to, flame, smoke, sparks, or smoldering.'' The Alliance
commented that ``sparks'' are the normal byproduct of any rotating
electrical component and which occur in normal vehicle operation, such
as the working of a starter motor. Moreover, the definition would
include complaints of ``smoke,'' and ``smoldering,'' which the Alliance
does not believe need to be tracked for early warning purposes. We are
retaining these words. Smoke commonly results from burning. We construe
``smoldering'' as burning with little smoke and no flames. We construe
``sparks'' as incandescent particles thrown off from a burning
substance. See The American Heritage Dictionary. Each of these
conditions is indicative of a fire or a potential fire. The type of
sparking for which the Alliance provided examples generally occurs as a
part of normal vehicle operation and is generally not visible to the
driver or passengers. We deem it highly unlikely that this type of
spark will be reported to the manufacturer. Therefore, in the final
rule, we are defining fire much as we proposed it, except that we are
adding ``or burning'' after ``combustion.'' ``Fire'' means ``combustion
or burning of any material in a vehicle as evidence by, but not limited
to, flame, smoke, sparks, or smoldering.''
24. We have decided to add an additional reporting category,
``rollover.'' The failure of various components can lead to a rollover,
so none of the other specified systems and components is likely to
capture all claims, notices, complaints, etc. about rollover.
(Moreover, some claims of rollover assert that the overall design of
the vehicle in question is defective, without referring to any
particular system or component.) Also, it is noteworthy that one major
impetus for the early warning provisions in the TREAD Act was the lack
of information available to NHTSA about incidents, including fatal
crashes, involving rollover after a tire tread separation. To avoid
corrupting the data, we are limiting this category to single-vehicle
crashes. Moreover, it will apply only to light vehicle and medium-heavy
vehicles including buses.
Although NHTSA has not previously defined ``rollover,'' FMVSS No.
301, Fuel System Integrity, includes a static rollover test (S6.4) in
which a vehicle is rotated on its longitudinal axis to successive
increments of 90 degrees. This forms the basis for our defining
``rollover'' for this rule as ``a single-vehicle crash in which a
vehicle rotates on its longitudinal axis to at least 90 degrees,
regardless of whether it comes to rest on its wheels.'' This will
encompass situations in which a vehicle rolls over on its side as well
as those in which it rolls over on its roof.
With regard to child restraint systems, ODI conducted a review to
identify the components whose failures have led to most of the recalls.
Based on this review, which has been placed in the docket, we proposed
to require manufacturers to separately report the number of problems/
incidents relating to the buckle and restraint harness, handle, seat
shell, and base. We proposed definitions for these components, except
for the handle.
[[Page 45862]]
JPMA commented that the term ``pads'' (restraint pads) and
``padding'' were used in two of our proposed definitions, and asked
that these terms be stricken since these components are rarely
associated with a safety risk and are often the subject of complaints
unrelated to safety. We agree with JPMA, and the final definitions do
not include these terms. Our own review of the term ``shield'' shows
that it appears in the definitions of both ``buckle and restraint
harness'' and ``seat shell.'' As only one is necessary, we are
including ``shield'' in the definition of ``buckle and restraint
harness'' and specifically excluding it from ``seat shell.''
With respect to tires, we proposed to follow the suggestions of RMA
in its comments, and by and large the final rule does so. Fatality and
injury reporting will include the information required of manufacturers
of other products, and will also include the damage claimed, the
vehicle manufacturer, the vehicle make, model and model year, the tire
size, the tire line, and the TIN.
We specifically requested RMA to provide its comments on
appropriate definitions of the terms ``bead,'' ``common green,'' ``tire
line,'' ``sidewall,'' ``SKU,'' and ``serial code'', and it did so. We
have adopted those suggestions.
``Bead'' is defined as
all the materials in a tire below the sidewalls in the rim contact
area, including bead rubber components, the bead bundle and rubber
coating if present, the body ply and its turn-up including the
rubber coating, rubber, fabric, or metallic bead reinforcing
materials, and the inner-liner rubber under the bead area.
The proposed definition of ``common green'' has been modified to
read as follows:
Tires that are produced to the same internal specifications but
that have, or may have, different external characteristics and may
be sold under different tire line names.
``Tire line'' is defined as ``the entire name used by a tire
manufacturer to designate a tire product, including all prefixes and
suffixes as they appear on the sidewall of the tire.''
The term ``sidewall'' includes ``The sidewall rubber components,
the body ply and its coating rubber under the side areas, and the
inner-liner rubber under the body ply in the side area.''
``SKU (Stock Keeping Unit)'' is defined as ``the alpha-numeric or
numeric designation assigned by a manufacturer to a tire product.''
We also asked for a definition of ``serial code,'' a term RMA used
on its draft warranty and property damage claim reporting forms. Upon
further consideration, and in order to use a term familiar to both
NHTSA and the industry, RMA will use the term ``tire type code'' on
these forms. This corresponds to the third grouping of identification
requirements as specified in 49 CFR 574.5(c), and, therefore, no
further identification is needed in this rule.
Finally, we are adopting RMA's recommended definition for ``tread''
or ``crown.'' That term means:
All materials in the tread area of the tire, including the
rubber that makes up the tread, the subbase rubber, when present,
between the tread base and the top of the belts, the belt material,
either steel and/or fabric, and the rubber coating of the same,
including any rubber inserts, the body ply and its coating rubber
under the tread area of the tire; and the inner-liner rubber under
the tread.
For property damage claims and warranty adjustments, we proposed to
require tire manufacturers to separately report the number of problems/
incidents relating to tread, sidewall, and bead. For incidents
involving death, if another component is allegedly involved, or if the
component is not specified in the claim, the incident will still have
to be reported.
RMA proposed a format for submitting data concerning total tire
production, warranty production, number of property damage claims and
number of adjustments. This sample format is shown on the document
filed in the docket, NHTSA 2001-8677-102, Attachment B-2. NHTSA accepts
this suggestion from RMA for submitting production, property damage
claims, and warranty adjustment data. However, we do not want tire
manufacturers to submit adjustment rate and property damage rate data
as shown on the RMA sample format. Therefore, the template that will be
adopted for tire manufacturers to submit data will be congruent with
the RMA suggestion, but will not include rate data.
RMA also suggested that we require tire manufacturers to provide a
list of ``common green'' tires. This is needed so that we are aware of
various tire lines, including house brands, that are of identical
construction, so we can get a fuller picture as to the failure
experiences of relevant tires. We have therefore added a new Section
579.26(d) to require submission of such a list with each quarterly
report.
Consistent with the approach taken in connection with the Uniform
Tire Quality Grading Standards (UTQGS), 49 CFR 575.104, we did not
propose to require reporting of warranty adjustments, property damage
claims, and field reports with respect to tires for which total annual
production of the same design and size is 15,000 or less. RMA did not
comment on this. After further consideration, we have decided that
simply establishing a 15,0900 tire threshold would raise too many
difficult issues that would require additional interpretation. We will
accomplish the same objective, however, by simply referencing the
``Application'' provisions of the UTQGS, 49 CFR 575.104(c)(1), which
contain an exception for, among other things, ``limited production
tires'' as defined in Section 575.104(c)(2).
RMA also commented that the early warning proposed rule would cover
tires for all motor vehicles, but that ``the obligation to submit early
warning information for non-passenger and light truck tires presents a
host of issues not addressed in the NPRM, requiring further information
from the industry.'' In separate comments submitted to the docket
(Comment NHTSA 01-8677-101), RMA addressed an early warning reporting
system for these tires, ``which suggests that, at the very least, the
implementation of the early warning reporting requirements for these
tires be delayed for at least one year.'' As an example, RMA referred
to ``medium radial truck tires,'' and commented that this category
comprises new and retreaded tires (which may have a different
manufacturer from the tire casing). Warranty periods for these tires
vary according to contract terms, and the tires are professionally
serviced. RMA would exclude these tires from all reporting except for
incidents of death.
We concur with RMA's view that this segment of the tire industry
requires further study, which may warrant regulation for early warning
purposes in a manner that differs from that accorded tires for other
motor vehicles. Accordingly, we are adopting the RMA recommendation to
only require full reporting under Section 579.26(a) and (c) for
passenger car tires, light truck tires, and motorcycle tires. However,
reports about incidents involving deaths must be submitted for all
tires.
O. Updating of Information
Several commenters addressed the issue of whether NHTSA will
require updating of reports of incidents involving death or injury if
there are changed circumstances or if the manufacturer was not aware of
certain relevant information at the time the report was initially
submitted to us. We are adopting Section 579.28(f) to address this
issue. We recognize the burden associated with tracking the progress of
claims and litigation to identify a broad range of newly
[[Page 45863]]
discovered information. However, some information that may not be known
to the manufacturer at the time of the initial report is so vital that
we need to receive it if it subsequently becomes available. If a
manufacturer indicates in its initial report that no system or
component has been identified in a claim or notice and later becomes
aware that a specified system or component allegedly contributed to the
incident, the manufacturer must submit a supplemental report regarding
that incident in the report covering the reporting period in which the
information was obtained.
In addition, if a vehicle manufacturer is not aware of the VIN, or
a tire manufacturer is not aware of the TIN, at the time the incident
is originally reported to us, the manufacturer must submit a
supplemental report regarding that incident in the report covering the
reporting period in which the VIN or TIN is identified. No other
updating will be required. For example, if a manufacturer has reported
an incident to us involving an injury and the injured person later
dies, we will not require a supplemental report. This last scenario was
specifically identified by several commenters as possibly creating a
significant burden.
P. One-Time Reporting of Historical Information
In the NPRM, we expressed concern that, as early warning reporting
begins, receipt by NHTSA of information from the first several
reporting periods would not provide sufficient information to allow us
to identify safety defect trends unless we could compare it to similar
information about earlier periods. To maximize the usefulness of the
data from the onset of reporting, we want to ``seed'' our data base
with historical data rather than merely letting it accumulate from the
time of the initial report. Therefore, we proposed that, no later than
the date that a manufacturer must submit its first reports under the
final rule, which we expected to be April 30, 2003, each manufacturer
would also submit, on a one-time basis, corresponding reports
reflecting the same information required by paragraphs (a) and (c) in
each of proposed Sections 579.21 through 579.27, providing information
on production and on the numbers of property damage claims, consumer
complaints, warranty claims, and field reports, as applicable, that it
received in each calendar quarter from January 1, 2000, to December 31,
2002, for each model and model year vehicle manufactured in model years
1994 through 2003, and for child restraint systems and tire
manufactured on or after January 1, 1998. Each report would identify
the alleged system or component related to the claim, incident, etc.,
as would the reports for the current reporting period.
We requested comment on whether the time frame for the proposal is
appropriate, and whether we should exclude historical data for deaths
and injuries. Many commenters objected to this proposal on the grounds
that it would be excessively burdensome. A discussion of these comments
and our estimate of the burdens of several alternative approaches is
contained in the Final Regulatory Evaluation (FRE) for this rulemaking,
which has been placed in the docket. We note, however, that some
manufacturers erroneously believed that we had proposed to require
submission of copies of the older field reports. We had not done so.
RMA objected to the proposal that tire manufacturers provide data,
on a quarterly basis, for a period commencing January 1, 1998. It
suggested yearly production information beginning with that date, and
commented that ``for property damage claims and warranty adjustments,
an accumulation of all claims and adjustments received in years 2000
through 2002 should be reported for each tire line and size for each
year of production.'' In our view, yearly data are not sufficient,
since the purpose of obtaining this historical data is to allow us to
make comparisons with currently quarterly information submitted in the
first several years of this program. And simply dividing the yearly
totals by four is not adequate, since there are often seasonal
differences, particularly for tires.
We have thoroughly considered the comments on this issue and, in
order to minimize the burden upon manufacturers, have decided to
significantly reduce the amount of historical information to be
submitted under this provision. We will not require the submission of
the numbers of historical consumer complaints (which the commenters
deemed most burdensome) or property damage claims. In addition, in
response to requests from several commenters, we have delayed the date
for submission of this information so that it is due one month after
the initial quarterly report (i.e., on September 30, 2003).
The final rule requires that a manufacturer shall file 12 separate
reports, providing information on the number of warranty claims or
adjustments, and the number of field reports that it received in each
of the 12 calendar quarters from April 1, 2000 to March 31, 2003, for
vehicles manufactured in model years 1994 through 2003 (including any
vehicles designated as 2004 models), for child restraint systems
manufactured on or after April 1, 1998, and for tires manufactured on
or after April 1, 1998. The manufacturers generally did not object to
providing warranty data, and we believe that field reports will provide
the richest data. We emphasize again that copies of these older field
reports need not be submitted.
V. When Information Must Be Reported
Section 30166(m)(3)(A) and (B) state that the information covered
by those paragraphs shall be reported ``periodically or upon request''
by NHTSA. Section 30166(m)(3)(C) states that the information covered by
that paragraph shall be reported ``in such manner as [NHTSA]
establishes by regulation.'' The ANPRM and NPRM discussed several
possibilities.
A. Periodically
The statute authorizes us to require periodic reporting of
information related to the early warning of defects. In the ANPRM, we
discussed the options of reporting on bases of ``information-as-
received,'' monthly, and quarterly, depending upon the gravity of the
information involved (e.g., we suggested the possibility that
information about deaths allegedly caused by safety defects might
justify a more frequent period of reporting than other types of
information). Commenters generally objected to reporting information
``as received.'' There was no objection to reporting on a quarterly
basis, the same as is required for defect campaign reporting under 49
CFR 573.6.
In the NPRM, we tentatively concluded that, with respect to
statistical reports, an ``as received'' or even monthly basis would
impose too great a burden and would be unlikely to provide significant
timeliness benefits. A quarterly reporting period appeared to be more
appropriate. We noted that the burden upon manufacturers would be
lessened if a common reporting date were adopted for the submission of
all statistical early warning information that we will require
``periodically.'' However, the NPRM requested comments on whether we
should require reporting six times per year.
In the NPRM, we proposed that virtually all the early warning
information, including copies of required field reports, be submitted
to us not later than the 30th day of the calendar month following the
end of the reporting period. We believed that 30 days would be
sufficient to compile this
[[Page 45864]]
information, but we requested comments on whether a shorter or longer
period would be appropriate. We also proposed that all communications
that would be required by Section 579.5 (those presently required by 49
CFR 573.8 and those that would be covered by the early warning rule,
i.e., communications relating to a customer satisfaction campaign,
consumer advisory, recall, or other safety activity involving the
repair or replacement of motor vehicles or equipment) be submitted to
us monthly, within 5 working days of the end of the month, as is
currently required for submissions under Section 573.8.
Several commenters asked for more time before the reporting
requirements would take effect. For example, the Alliance suggested
that the first reporting quarter should be one year after the final
rule (including any possible modifications adopted pursuant to
petitions for reconsideration) is issued.
RMA commented that tire manufacturers ought to be permitted to
report within 60 days after the last day of the quarterly reporting
period rather than 30 days. RMA noted that production may come from
numerous plant locations, property damage claims from specific files
which may not be in one location, and warranty adjustments from totally
different files. The manufacturer must then compile the data and load
it into a program or programs that will compare the information and
match the data to the appropriate tire line and size. According to RMA,
``this process will take many weeks.'' To require submission of data
within 30 days ``will represent an unreasonable burden on the tire
industry.'' RMA stated that in the third quarter of calendar year 2001,
its tire manufacturer members ``collectively received almost 450,000
warranty adjustments and property damage claims, representing over
100,000 different stock keeping units (SKUs).'' Some other commenters
asked for 45 days to submit the reports, while others believed that 30
days was sufficient (particularly if they did not have to submit
historical data on the same date).
After reviewing these comments, we have decided to adopt the
quarterly reporting that we proposed.
While we believe that most manufacturers will be able to have
systems in place to accumulate and store the information required to be
submitted under this rule within six months, in order to accommodate
those manufacturers that may be less prepared, we have decided to defer
the first reporting period to the second quarter of 2003.
We also believe that it is reasonable to require reports to be
submitted not later than 30 days after the end of each calendar
quarter. After all, the entire point of these rules is to obtain early
warning information, and we want to minimize any unnecessary delays in
our review of this information. However, so that both manufacturers and
NHTSA may become accustomed to the collation, transmission, and storage
of data, the first three reports (i.e., those for the final three
calendar quarters of 2003) will be due two months after the end of the
reporting period. Thus, the reports for the quarters that end June 30,
September 30, and December 31, 2003, will be due, respectively, not
later than August 31 and December 1, 2003 (November 30, 2003, being a
Sunday), and February 29, 2004. Thereafter, reports will be due within
30 days of the end of the reporting period; the report for the first
quarter of 2004 that ends on March 31 will be due not later than April
30, 2004. Copies of other documents that must be transmitted to NHTSA
(relating to customer satisfaction campaigns, etc., as described in
Section 579.5(b)), will be due within 5 working days after the end of
each month beginning with April 2003.
B. Upon NHTSA's Request
The TREAD Act also requires all manufacturers to provide
information within the scope of the early warning provision when we
request it. Such a requirement complements our pre-TREAD authority to
request safety-related information as part of our investigations. Under
this new authority, the information need only relate to preliminary
investigative activities and need only be of such a nature that it may
assist us in the identification of safety-related defects. Thus, we
plan to request additional information from manufacturers if the
information in the periodic reports suggests that there may be a
possible problem. These inquiries would not be formal investigations,
such as Preliminary Evaluations and Engineering Analyses now conducted
by ODI.
C. One-Time Historical Report
We had proposed in the NPRM that this historical data would be due
on the date that the first quarterly report was due, which we
tentatively assumed would be April 30, 2003. However, to reduce the
burden on manufacturers, we have decided to establish the due date for
that submission as three months after the end of the first quarter
covered by the rule, which will be September 30, 2003. This will allow
manufacturers to spread their workload and to devote their full
attention to preparing their reports for the first regular reporting
period, which will be August 31, 2003.
VI. The Manner and Form in Which Information Will Be Reported
Section 30166(m)(4)(A)(iii) requires us to specify ``the manner and
form of reporting [early warning] information including in electronic
form.''
In the ANPRM, we discussed the possibility of using spreadsheets in
a specified format with separate reports of the numbers of various
categories of information (e.g., claims/notices of deaths and injuries,
consumer complaints, warranty claims, field reports) along with other
information (such as production volumes) by make, model, model year,
and by component (we would specify which components). We would then be
able to utilize a computer to identify aggregate numbers, rates (using
production data), or unusual trends in each of these categories. This
would obviate the need for manufacturers to provide us with their
warranty or claims codes or to make significant revisions to their
current coding procedures.
RMA suggested that we simply state that information shall be
formatted by a manufacturer in a format approved by NHTSA. However,
RMA's suggestion might result in requests by a large number of
manufacturers for approval of their own specific formats, taxing
NHTSA's resources that will be devoted to the early warning program and
to the development of ODI's new data management system.
NHTSA is adopting two alternative methods for manufacturers to
submit their periodic reports, using specified templates that are
consistent with Microsoft Excel spreadsheets. These templates will be
available on the NHTSA website, www.nhtsa.dot.gov. The most efficient
method, and the one we prefer that manufacturers use, is over the
Internet directly to ODI's secure data repository. NHTSA will establish
a link on its web site to a data repository suitable for containing
these data. After obtaining a secure password from the agency,
manufacturers would be able to use that link to ``push'' their report
to the NHTSA repository. Upon receipt of the data, an acknowledgement
will be returned to the submitter, noting the date and time of the
submission. To protect unauthorized submissions and to protect the
data, the repository will utilize a highly secure server. Manufacturers
will be required to obtain
[[Page 45865]]
an identification number and a password by submitting a written request
to ODI.
Alternatively, for data files smaller than the size limit of the
DOT Internet e-mail server, currently five megabytes, manufacturers may
submit their data as an attachment to an e-mail message, sent to
odi.ewr@nhtsa.dot.gov. The e-mail system will provide a return receipt.
There is, however, a risk that this method will not result in the data
actually arriving at the appropriate office in NHTSA, since e-mail
servers may be unreliable in handling large attachments, both within
DOT and within the manufacturers' own systems. The preferred method,
based on security considerations, ease of use, and reliability, is the
web site link described above.
Any electronic image provided by a manufacturer must have no less
than 200 and no more than 300 dpi (dots per inch) resolution.
In the NPRM, we had proposed to allow submission of information on
CD/ROMs. However, we have been advised that the radiation used on mail
to the DOT Headquarters building to protect against anthrax
contamination can destroy information on CD/ROMs. Therefore, we cannot
allow this method to be used.
For small manufacturers, which only need to submit minimal amounts
of data, we are establishing an interactive form reachable through a
link on our web site that may be filled out by manual data entry by the
submitter. This method will require completing a form for each
incident, with fields for each of the required data elements. A
manufacturer ID and a secure password will be needed for these reports
as well, to prevent the data from being corrupted.
Paper documents, computer printouts, or similar non-electronic
submissions of this data will not be acceptable.
With respect to copies of communications submitted under Section
579.5 and copies of field reports submitted under paragraph (d) of
various sections, we prefer receiving the documents in electronic form
using any state-of-the-art, commercially available, non-proprietary
graphic compression protocol, through the Internet link to the ODI data
repository or via e-mail. However, to accommodate small businesses, we
will also accept paper copies of those documents mailed in the same
manner as is currently used under current Section 573.8.
Manufacturers will have to provide ODI with the name and contact
information (phone number, address, e-mail address, etc.) of two
information technology (IT) point-of-contact persons (a primary contact
and a back-up contact), who will be responsible for resolving issues
with data submissions as they come up from time to time.
The Alliance and RMA requested the opportunity to discuss details
related to the submission of the early warning data, the reporting
format, the means for submitting data, and other technical details to
ensure smooth implementation of the reporting process. NHTSA supports
this approach. NHTSA staff and its contractor's staff met with Alliance
representatives on April 9, 2002, and with RMA representatives on May
17, 2002, to discuss IT issues associated with early warning reporting.
Also, after receiving an invitation from Ford for NHTSA to visit its
facility, representatives of NHTSA and its contractor traveled to
Dearborn to discuss Ford's existing data retrieval and analysis system
for early detection of potential safety defects.
After the final rule is published but before the first reporting
period, NHTSA will conduct a public meeting at the DOT headquarters in
Washington to discuss data transmission methods and protocols.
Interested persons, particularly the manufacturers' IT staff members,
will be invited to discuss technical issues in an open forum to resolve
any issues related to the submission of data. We also plan to conduct
several trial runs with the cooperation of various manufacturers to
assure that the process will run smoothly.
VII. How NHTSA Plans To Handle and Utilize Early Warning Information
A. Review and Use of Information
Section 30166(m)(4)(A)(i) and (ii) require that our early warning
rule specify how the information reported to us will be used. Those
paragraphs provide:
(A) [NHTSA's] specifications. In requiring the reporting of any
information requested by [NHTSA] under this subsection, [NHTSA]
shall specify in the final rule * * *
(i) how [early warning] information will be reviewed and
utilized to assist in the identification of defects related to motor
vehicle safety; [and]
(ii) the systems and processes [that NHTSA] will employ or
establish to review and utilize such information.
We will comply with the statutory provision by explaining in this
document, as we did in the NPRM, that we intend to consider pre-
investigation information received under Section 30166(m) in the same
manner as we currently treat other information that is now available to
us about possible safety defects, such as consumer complaints to NHTSA
and documents received from manufacturers under current 49 CFR 573.8.
That is to say, we will review the available data and information to
determine whether potentially problematic trends are developing in the
vehicles, equipment items, components, and systems for which
information has been provided. As noted earlier, if we identify matters
that might possibly suggest the existence of a safety defect, we plan
to seek additional clarifying information from the manufacturer in
question, and from other sources, to help us to decide whether to open
a formal defect investigation. In the NPRM, we commented that if we
decided to change this approach, we would discuss any such changes in
the final rule.
Referring to a report of the Inspector General of the Department of
Transportation (Review of the Office of Defects Investigation, NHTSA,
Report No. MH-2002-071, Jan. 3, 2002), RMA suggested that if NHTSA
intends to establish procedures for determining whether to open a
formal investigation or pursue other enforcement action based on its
review of early warning reporting data, the agency should conduct a
separate notice and comment rulemaking. We note that NHTSA already has
a regulation covering its defect investigations (49 CFR Part 554,
Standards Enforcement and Defects Investigation) and does not foresee
any change in its investigatory procedures that would require an
amendment.
We are developing an enhanced data warehouse and data processing
system called ARTEMIS--Advanced Retrieval (Tire, Equipment, Motor
vehicles) Information System. ARTEMIS will provide for centralized
storage of information, include a document management system, use data
analysis tools, and facilitate the provision of appropriate information
to the public. We expect to have a fully functional system by the fall
of 2002, although modifications will likely be made throughout the
remainder of 2002 in preparation for the receipt of early warning
information beginning in 2003.
Once the data are received, NHTSA will review the information for a
given quarter to insure compliance with the requirements. In addition,
as the data become available, historical trends will be evaluated and
tracked. The tracking of the various submissions will be, in part,
through statistical control mechanisms. The data provided by the
manufacturers will be compared with other information available to
NHTSA, including its existing databases. As necessary, supplemental
information
[[Page 45866]]
will be requested from a manufacturer to expand on the routine early
warning submissions.\6\
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\6\ This notice does not establish rules governing disclosure or
confidentiality of information submitted pursuant to the early
warning rule. The agency has published proposed amendments to 49 CFR
Part 512, Confidential Business Information (67 FR 21198, April 30,
2002) and, as appropriate, in the course of that rulemaking will
consider issues related to confidentiality and disclosure.
---------------------------------------------------------------------------
B. Information in the Possession of the Manufacturer
Section 30166(m)(4)(B) provides as follows:
(B) Information in possession of manufacturer. The [early
warning] regulations may not require a manufacturer of a motor
vehicle or motor vehicle equipment to maintain or submit records
respecting information not in the possession of the manufacturer.
The information that we are requiring manufacturers to submit to us
is in their possession, or will be under the recordkeeping requirements
that we are adopting. For example, if a manufacturer (as broadly
defined in this rule) does not have ``possession'' of a complaint, it
obviously cannot (and would not have to) report to us about such a
document. However, we want to emphasize that we will not tolerate any
attempts by manufacturers to utilize this provision to avoid reporting
by improperly evading receipt of, or failing to obtain, maintain, and
retain relevant records.
Pursuant to 49 CFR Part 576, Record Retention, we have required
manufacturers of motor vehicles to retain for a period of five years
from the date of generation or acquisition ``complaints, reports, and
other records concerning motor vehicle malfunctions that may be related
to motor vehicle safety'' (49 CFR 576.1). These are described with
great specificity in 49 CFR 576.6:
Records to be maintained by manufacturers * * * include all
documentary materials, films, tapes, and other information-storing
media that contain information concerning malfunctions that may be
related to motor vehicle safety. Such records include, but are not
limited to, communications from vehicle users and memoranda of user
complaints; reports and other documents, including material
generated or communicated by computer, telefax or other electronic
means, that are related to work performed under or claims made under
warranties; service reports or similar documents, including
electronic transmissions; from dealers or manufacturer's field
personnel; and any lists, compilations, analyses, or discussions of
such malfunctions contained in internal or external correspondence
of the manufacturer, including communications transmitted
electronically.
Section 576.8 sets forth the meaning of ``malfunctions that may be
related to motor vehicle safety,'' which include with respect to a
motor vehicle:
* * * any failure or malfunction beyond normal deterioration in
use, or any failure of performance, or any flaw or unintended
deviation from design specifications, that could in any reasonably
foreseeable manner be a causative factor in, or aggravate, an
accident or an injury to a person.
Thus, manufacturers of motor vehicles, by virtue of complying with
Part 576, already have in their possession the types of information
that will have to be reported under this rule.\7\
---------------------------------------------------------------------------
\7\ As proposed in the NPRM, we are amending Part 576 to require
similar retention of records by manufacturers of child restraint
systems and tires. See discussion below.
---------------------------------------------------------------------------
C. The Requirements Are Not Unduly Burdensome
Section 30166(m)(4)(D), Burdensome requirements, requires that the
final rule:
shall not impose requirements unduly burdensome to a
manufacturer or a motor vehicle or motor vehicle equipment, taking
into account the manufacturer's cost of complying with such
requirements and [NHTSA's] ability to use the information sought in
a meaningful manner to assist in the identification of defects
related to motor vehicle safety.
The ANPRM gave manufacturers a general idea of the types of data
and information that they may be required to submit under a final rule.
This allowed them to make a tentative assessment of the burdens that an
early warning reporting rule may entail. Some manufacturers and other
commenters addressed these issues. The agency's Preliminary Regulatory
Evaluation (PRE), which estimated costs to manufacturers and which was
placed in the docket when the NPRM was published, took these comments
into consideration. We anticipated that the additional detail in the
NPRM and the PRE would allow manufacturers to make a more accurate
assessment of potential compliance burdens and to identify them with
specificity. The agency has tried to reduce the burden to the extent
possible while still fulfilling the intent of the TREAD Act.
There was no significant disagreement with the statement in the PRE
that there is unlikely to be a significant burden associated with the
actual reporting of information. Rather, the burden on each
manufacturer will depend on the extent to which that manufacturer must
revise and/or supplement its current information management and
retention systems. Most major manufacturers already have a log or
database of information about the categories for which early warning
reporting would be required that is comprehensive and regularly
updated. In this case, the burden associated with the rule would not be
substantial. At most, such manufacturers would have to add several data
elements and/or reorganize existing data elements such as the
identification of components involved in claims, and add a process for
dealing with foreign claims related to deaths.
In the NPRM, we significantly reduced the burden on manufacturers
of vehicles and equipment from the levels that could have been required
under the TREAD Act. First, other than requiring reports about
incidents involving deaths based on claims and notices, which do not
need to be maintained in a complex computer system, and campaign
documents, we did not propose to require small vehicle manufacturers,
original equipment manufacturers, and replacement equipment
manufacturers, (other than manufacturers of child restraint systems and
tires) to submit periodic early warning reports. Second, we did not
propose to require at this time any information about incidents that
occur in foreign countries except for those based on claims involving
deaths.
We also considered requiring information for all systems and
components of a vehicle, instead of those specified in Section IV.N
above. We believed that the reduced number of components on which
reporting is required would reduce reporting costs.
The PRE estimated the number of claims, warranty claims, customer
complaints, field reports, etc. for each of the following groups of
manufacturers: light vehicles, medium and heavy trucks, buses,
trailers, motorcycles, tires, and child restraint systems. It estimated
the costs of setting up computer systems to handle the reporting
requirements and the types of skills and labor hours needed to provide
the proposed information. Similar estimates were made for each of the
other groups of manufacturers. Cumulative costs for the other groups
were significantly higher, since they included many more manufacturers,
and many of those manufacturers are not as computerized today as the
light vehicle manufacturers. Manufacturers contested most of our
estimates.
Based on comments filed in response to the NPRM and on supplemental
comments filed by the Alliance on May 3, 2002, we revised our estimates
of the burdens associated with this rulemaking. Revised estimates for
the
[[Page 45867]]
costs associated with the NPRM were published in a notice published on
June 25, 2002 pursuant to the Paperwork Reduction Act (67 FR 42843).
NHTSA's Final Regulatory Evaluation (FRE) (June 2002), which is in
the docket, discusses benefits and costs associated with the final
rule. A benefit from NHTSA's receipt of the early warning information
is that NHTSA investigations will be opened sooner. As a result,
recalls will be initiated earlier, defective vehicles and equipment
will be taken off the roads sooner, and fewer injuries and fatalities,
and less property damage, will occur. We expect that the analysis of
the information will result in increased numbers of investigations and
recalls, both by the manufacturers voluntarily and by NHTSA. However,
the agency cannot quantify the benefits in terms of reduced fatalities,
injuries, or property damage. The agency estimates that total
manufacturers' recall costs could be reduced by $9 million per year
because they will identify defective parts earlier, correct the
deficiencies in ongoing production and avoid recall costs in the
future. This is based on initiation of an average recall (manufacturer
voluntary recall and NHTSA-influenced) three months earlier for those
recalled vehicles that are still in production when the recall occurs
and for which some recalled vehicles are three or more years old, and
assumes an average recall cost of $100 per vehicle.
The FRE estimates the total first year costs (including computer
startup costs, three years of limited historical data (i.e., warranty
claims and field reports), and the four quarterly reports in the first
year of submission) for the final rule will be about $70 million, and
recurring annual costs will be about $1.72 million.
In summary, there are safety benefits associated with this final
rule; however, we were unable to quantify them. There are start-up
costs in the first year of the final rule of $70 million that are
offset somewhat by economic benefits to manufacturers of $9 million per
year. However, in the second and subsequent years, we estimate that
benefits to the manufacturers of $9 million per year will outweigh the
annual on-going costs of $1.72 million per year.
Apart from quantifiable costs, we emphasize that in this final rule
we have significantly reduced many other burdens on manufacturers that
had been proposed in the NPRM. Primary among these is the substantial
reduction (over 50 percent) in the amount of historical reporting that
will be required, since we will not require reporting of historical
numbers of property damage claims and consumer complaints. In addition,
we postponed the first reporting period for three months, extended the
reporting dates for reports covering 2003, merged warranty and
complaint reporting for child restraint system manufacturers at their
request, expanded the exemption from most reporting for limited
production tires by referring to the applicability section of the
UTQGS, reduced the need to consult with outside legal counsel, withdrew
the proposal to require manufacturers to redact personal identifiers
from field reports, and provided for only limited updating of incident
reports predicated on claims and notices involving deaths and injuries,
rather than requiring repetitive checking to see if additional
information becomes available. In addition, we significantly reduced
the proposed record keeping requirements, primarily by retaining the
existing five-year period rather than the ten years that we had
proposed.
D. Periodic Review
Under section 30166(m)(5), NHTSA must specify in the final rule
``procedures for the periodic review and update of such rule.'' Once
the final early warning rule is in effect, we anticipate that our
experience will indicate areas where the regulation ought to be
amended, to add or delete information required, and to modify our
information-gathering procedures. We would then make internal
adjustments where called for, or propose appropriate modifications to
the final rule. This would be an on-going process of evaluation. We
plan to commence the initial review of the rule within two years after
the initial reports are received, that is to say, the summer of 2005.
Subsequently, we plan to review our defect information-gathering
procedures at least once every five years.
Although this final rule was preceded by an ANPRM and NPRM, we have
received little comment on the impacts the final rule will have on
manufacturers who are considered to be ``small businesses'' by the
Small Business Administration (SBA) (e.g., trailer manufacturers who
employ no more than 500 persons, and all other vehicle manufacturers
who employ no more than 1,000 persons). While we have attempted to
reduce the reporting burden on manufacturers who produce a limited
number of vehicles a year, choosing 500 vehicles as an appropriate
threshold, SBA has commented that there are manufacturers who produce
more than 500 vehicles a year but who nevertheless are ``small
businesses'' as defined by the SBA. SBA provided partial information on
the numbers of such businesses, but we are as yet unable to determine
the total number of ``small businesses'' in this category. Accordingly,
we intend to continue our review of the industry to determine the
number of such manufacturers who may be ``small businesses'' but
required by the final rule to report in full. By mid-2005, we will have
completed this review and expect to have received sufficient reports
from these ``small business'' manufacturers to evaluate their
assistance in detecting potential defects in their motor vehicles. We
expect that this evaluation, in turn, will allow us to determine
whether the threshold of 500 vehicles a year is appropriate or whether
it should be modified.
VIII. Extension of Recordkeeping Requirements To Include Manufacturers
of Child Restraint Systems and Tires
Our principal record keeping regulation is 49 CFR Part 576, Record
Retention. The current regulation applies only to motor vehicle
manufacturers and requires them to keep certain records for a period of
five years.
A colloquy on the floor of the House with respect to Section
30166(m)(4)(B) addressed the need to preserve relevant records to
assure that the goals of the TREAD Act are achieved:
Mr. Markey: Concern has been expressed that this provision not
become a loophole for unscrupulous manufacturers who might be
willing to destroy a record in order to demonstrate that it is no
longer in its possession. Would [Mr. Tauzin] agree that it is in
[NHTSA's] discretion to require a manufacturer to maintain records
that are in fact in the manufacturer's possession and that it would
be a violation of such a requirement to destroy such a record?
Mr. Tauzin: The gentleman is again correct.
As we discussed in Section VII above, we proposed to amend Part 576
to assure that documents covered by the early warning regulation are
kept for an appropriate length of time after a manufacturer acquires or
generates them.
Part 576 currently applies only to vehicle manufacturers, while the
TREAD Act covers manufacturers of motor vehicle equipment as well. We
proposed to extend the applicability of Part 576 to those equipment
manufacturers from whom we will require full reporting, i.e.,
manufacturers of child restraint systems and of tires. We asked for
comments on whether record retention requirements should also be
expanded to include
[[Page 45868]]
manufacturers of replacement equipment other than child restraint
systems and tires and manufacturers of original equipment.
Until the TREAD Act, the requirement that a remedy for safety
defects and noncompliances be provided without charge did not apply if
a vehicle or child restraint system was bought by the first purchaser
more than eight calendar years, or a tire, including an original
equipment tire, was bought by the first purchaser more than three
calendar years, before the determination that a defect or noncompliance
existed. (Section 30120(g)(1)). Section 4 of the TREAD Act amended
Section 30120(g)(1) to extend the free remedy period to ten years for
vehicles and most replacement equipment including child restraint
systems, and to five years for tires.
Currently, 49 CFR 576.5 requires manufacturers of motor vehicles to
retain the records specified in 49 CFR 576.6 for a period of five years
from the date they were acquired or generated by the manufacturer. The
purpose of Part 576 is:
* * * to preserve records that are needed for the proper
investigation, and adjudication or other disposition, of possible
defects related to motor vehicle safety and instances of
nonconformity to the motor vehicle safety standards and associated
regulations (49 CFR 576.2).
Towards this end, we tentatively concluded that records that may be
pertinent to possible defects and noncompliances should be retained by
a manufacturer of motor vehicles for the period during which the
manufacturer is required to provide a remedy without charge. Thus, we
proposed amending Section 576.5 to extend the record retention period
from five years to ten years for the records specified in Section
576.6. Given that manufacturers of child restraint systems and tires
are also required by statute to remedy defects and noncompliances
without charge, and that they are also covered by the TREAD Act's early
warning reporting requirements, we tentatively decided that
manufacturers of child restraint systems and tires should be required
to retain records for ten and five years, respectively. Thus, our
proposed Section 576.5(d), read as follows:
(d) Each manufacturer of motor vehicles, child restraint
systems, and tires shall retain each property damage claim, warranty
claim, consumer complaint, and field report received from an
authorized dealer of such manufacturer, for a period of five
calendar years from the date the manufacturer acquires it, but need
not retain it when the calendar year is or becomes ten years greater
than the model year of any motor vehicle or child restraint system
that is the subject of the document.
Thirteen comments were submitted concerning the proposed changes in
the record retention requirements. These were from Nissan, the
Alliance, JPMA, RMA, Harley-Davidson, Bendix, Johnson, Ford,
Utilimaster, AIAM, CU, MEMA, and GM. CU supported the proposal. Most of
the remaining comments either questioned the reasonableness of the
proposal or contended that various aspects of the proposal were
inconsistent or confusing. In addition, some noted that the proposal
did not specify a limit on the retention of records relating to
incidents involving injury or death or limit the retention requirements
to records located in the United States or pertaining to vehicles
offered for sale in the United States.
A number of comments (Alliance, Nissan, Ford, GM) questioned the
need for the agency to extend the current five-year record retention
requirement to ten years for most categories of information that would
be covered by the early warning reporting rules. These comments
generally asserted that there is no reasonable justification for
changes to existing requirements for a document to be retained for five
years from the date that it was created, and that those requirements
provide the agency with enough information to fully investigate any
potential safety defects. In its comment, GM contended that there is
nothing in the TREAD Act that would require an extension of the record
retention period. Ford stated that defect investigations are unlikely
to resolve reports of incidents that happened more than five years ago.
AIAM observed that it is difficult to imagine that six to ten-year old
records will contain information on an alleged problem that is not
already present in data available for the most recent five years.
The agency has reevaluated the need for manufacturers to retain
records that are more than five years old. We have concluded that our
investigative needs, addressed to date by section 576.5 et seq., have
been adequately met by the existing requirement for manufacturers to
retain complaints, reports, and other records for five years concerning
malfunctions that may be related to motor vehicle safety. Accordingly,
we have decided not to require that the records described in proposed
Section 576.6 be retained for ten years. The agency is instead
retaining the existing five-year retention period for those records.
We are adopting and slightly revising the requirement set forth in
proposed Section 576.5(c), and in the first portion of proposed Section
576.5(d), relating to retention of the underlying records on which the
information reported under the early warning rule is based. For smaller
vehicle manufacturers and for manufacturers of equipment other than
tires and child restraint systems, this would only apply to records
related to these incidents that are referred to in claims and notices
involving deaths. For other manufacturers, this would be the underlying
records supporting the aggregate numbers of property damage claims,
consumer complaints, warranty claims, and field reports that will be
reported to NHTSA under paragraph (c) of Sections 579.21-579.26, as
applicable. This will not add a significant burden, since most of these
documents already were covered by existing Part 576. As discussed
below, the retention period for these records will be five years from
the date they are generated or acquired.
Proposed Section 576.5(e) would have required motor vehicle, child
restraint system, and tire manufacturers to retain, for a period of one
year, field reports from one of their employees or representatives or
from the owners or operators of ten or more vehicles of the same make,
model, and model year that they have manufactured, and a copy of each
document reported to NHTSA for a customer satisfaction campaign,
consumer advisory, and recall (other than those submitted pursuant to
49 CFR Parts 573 and 577). Because the covered manufacturers will be
required to furnish all these documents to NHTSA, the agency has
decided that there is no need for the manufacturers also to be required
to retain copies of the documents within their own possession for one
year. Therefore, we are not adopting the requirements proposed in
Section 576.5(e). We are instead adopting language that expressly
states that manufacturers are not required to retain copies of any
document submitted to NHTSA under 49 CFR Parts 573 and 577 (which
specify requirements for notifying the agency and owners of defects and
noncompliances) and any document submitted under the early warning
reporting requirements of Part 579. See Section 576.5(c).
We note that some comments (Alliance, JPMA, Ford) contended that
NHTSA had not estimated the costs associated with doubling the record
retention period, and had not demonstrated that the benefits that the
agency could derive from increasing the retention period would outweigh
the burden that increase would impose on affected manufacturers.
However, these
[[Page 45869]]
comments are mooted by the fact that we are not adopting our proposal.
JPMA recommended that the agency adopt a five-year record retention
requirement for child restraint system manufacturers, as opposed to the
ten-year requirement proposed in the NPRM, on the basis that this
duration is close to the recommended life of the product, and
reasonably balances the costs of record retention with the goal of
having a reasonable amount of information available to assist NHTSA in
defect investigations. JPMA noted that record retention requirements
would be imposed on child restraint system manufacturers for the first
time. Thus, our final rule is in accord with the views of the
representative of the child restraint system manufacturers.
RMA recommended that the proposed regulations be modified to
require tire manufacturers to retain information for a period no longer
than the five-year period succeeding the date of manufacture of the
product identified in a property damage claim, warranty adjustment, or
fatality or injury claim or notice. The comment does not explain why
the retention period should run from the production date of the tire,
as opposed to the date on which the record was acquired, as it does for
motor vehicle and child restraint system manufacturers. To maintain
consistency with those requirements, the agency believes that the
retention period for records pertaining to tires should run for a
period of five years from the date on which the record was acquired,
and not from the date on which the tire was manufactured.
Our decision not to impose a ten-year record requirement also
addresses a number of comments (Nissan, Alliance, AIAM, Harley-
Davidson) which contended that the proposed regulatory language for
Section 576.5 is confusing. These comments observed that paragraph (a)
of this section would impose a ten-year retention period for the
category of records described in Section 576.6, and that this
description is broad enough to encompass the property damage claims,
warranty claims, consumer complaints, and field reports for which a
five-year retention period was proposed in paragraph (d) of the
section, and the field reports for which a one-year retention period
would be prescribed in paragraph (e). As noted above, the agency is
leaving the existing five-year retention requirement for these records
in place. We are also adopting a five-year retention requirement for
the records that underlie the information reported to us under the
early warning reporting requirements (claims and notices involving
death or injury, and, as applicable depending on the type of product
manufactured, property damage claims, warranty claims, consumer
complaints, and field reports). This should eliminate any confusion as
to the length of time that any given record must be retained.
Section 576.5(d), as proposed, would have created an exception from
the five-year record retention requirement for property damage claims,
warranty claims, consumer complaints and authorized dealers' field
reports ``when the calendar year is or becomes ten years greater than
the model year of any motor vehicle or child restraint system that is
the subject of the document.'' Aside from RMA's comment, noted above,
the only other comment that addressed this provision was from GM, which
stated that it did not understand why the agency would want to create
such an exception from current record retention requirements. NHTSA has
reassessed the need for the proposed exception in light of this
comment, and the absence of any other comment concerning it from
manufacturers who would be subject to the proposed record retention
requirements. The agency has accordingly not incorporated the exception
into Section 576.5(d).
Several comments were received regarding proposed Section 576.5(c),
which stated: ``Each manufacturer of motor vehicles, original
equipment, and replacement equipment shall retain each claim or notice
related to an incident involving a death or injury.'' Most of these
(Nissan, AIAM , Alliance, Bendix, Utilimaster, and Harley-Davidson)
observed that the proposed language specifies no limit for the
retention of claims and notices involving death or injury. The Alliance
contended that such an indefinite retention period is inconsistent with
OMB regulations requiring agencies to establish maximum retention
periods.
The agency recognizes that it inadvertently omitted a time period
for retention of these documents. Accordingly, we will add language
clarifying that the retention period for all records underlying the
early warning submissions is five years from the date the record is
generated or acquired. This will make the retention period for such
claims and notices involving deaths or injuries consistent with that
for all other categories of records covered by the retention
requirements.
MEMA agreed with the proposal not to extend most record retention
requirements to original and replacement equipment manufacturers,
except for manufacturers of tires and child restraint systems. The
comment noted that a substantial number of vehicle parts and equipment
manufacturers are small businesses, and that applying the record
retention requirement to those manufacturers would add an unnecessary
cost burden. Accordingly, MEMA supports extending these requirements
only to those equipment manufacturers from whom the agency would
require full reporting (i.e., tire and child restraint system
manufacturers). It recommended that proposed Section 576.5(c) be
amended to clarify that it would only apply to motor vehicle, tire, and
child restraint system manufacturers. MEMA (and Johnson) noted that
absent such an amendment, proposed Section 576.5(c) would be
inconsistent with the proposed sections on ``Scope'' (576.1) and
``Application'' (576.3) of Part 576.
We acknowledge the inconsistency. However, we are addressing it by
revising the language of Sections 576.1 and 576.3, rather than by
allowing equipment manufacturers to destroy documents related to
incidents involving claims for deaths attributed to their products.
These documents could be very relevant to agency defect investigations.
Moreover, the burden of retaining them is exceedingly slight; there are
likely to be very few claims and notices received by these
manufacturers. Thus, under new Section 576.5(b), the requirement to
retain documents related to incidents involving deaths reported to us
for five years applies to all vehicle and equipment manufacturers.
The Alliance and Nissan observed that as proposed, the record
retention requirements would not be limited to documents related to
vehicles offered for sale in the United States. The comments asserted
that there must be a nexus to the United States for the record
retention requirements. Johnson submitted similar comments. We decline
to expressly limit the retention requirements to records located within
the United States. The agency notes in this regard that the early
warning reporting rules will require reports of each incident involving
one or more death(s) occurring in a foreign country that is identified
in claim(s) against the manufacturer involving the manufacturer's
product, if that product is identical or substantially similar to a
product that the manufacturer has offered for sale in the United
States.'' See, e.g., Section 579.21(b)(1). A manufacturer's ability to
provide follow-up information if requested would be diminished if the
agency were to expressly limit the record retention requirement to
records located in the United States. Similarly, the purposes of
[[Page 45870]]
the rule and the agency's ability to conduct effective defect
investigations would be undermined if we were to limit the record
retention requirements to documents related to vehicles offered for
sale in the United States.
Finally, we have reviewed our regulation on tire record keeping, 49
CFR Part 574. Section 574.6(d) and Section 574.10 require,
respectively, tire manufacturers and motor vehicle manufacturers to
maintain records of new tires they produce, and tires on new vehicles
and the names and addresses of the first purchaser of the vehicles for
not less than three years after the date of purchase. In light of the
statutory amendment increasing the period from three to five years for
free remedy of tires, and our conforming change to Part 576, we
proposed adopting conforming amendments to Sections 574.6(d) and 574.10
under which these records will also be held for five years. There were
no comments on the proposal, and Sections 574.6(d) and 574.10 are being
adopted as proposed.
IX. Administrative Amendments to 49 CFR Part 573 To Accommodate Final
Rules Implementing 49 U.S.C. Sections 30166(l) and (m)
For many years, we have required manufacturers to furnish us with a
copy of all notices, bulletins, other communications including warranty
and policy extension communiques and product improvement bulletins
regarding defects, whether or not safety related (49 CFR 573.8).
Currently, this requirement is located in our regulation on defect and
noncompliance reporting, 49 CFR Part 573. Given our adoption of a new
regulation, Part 579 Reporting of Information and Communications About
Potential Defects, it seems appropriate to transfer the subject matter
of Section 573.8 to Part 579. We proposed a Section 579.5(a) which is
identical to Section 573.8. There were no comments on that proposal.
The final rule achieves the transfer with the removal of Section 573.8
and the adoption of Section 579.5(a).
There currently exists a regulation at 49 CFR Part 579, Defect and
Noncompliance Responsibility (2001). This regulation sets forth the
responsibilities of various types of manufacturers for safety-related
defects and noncompliances. As such, we feel that it would be
appropriate for its specifications to be moved to Part 573.
Accordingly, we are also amending Part 573 to incorporate these
specifications as part of this rulemaking document. These are reflected
in amendments to the scope, purpose, and definitions of Part 573, and
the addition of the substantive requirements of former Section 579.5 as
a new Section 573.5, with other sections of Part 573 renumbered
accordingly.
X. Rulemaking Analyses
Regulatory Policies and Procedures. Executive Order 12866,
``Regulatory Planning and Review'' (58 FR 51735, October 4, 1993)
provides for making determinations whether a regulatory action is
``significant'' and therefore subject to Office of Management and
Budget (OMB) review and to the requirements of the Executive Order. The
Order defines as ``significant regulatory action'' as one that is
likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or Tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
We have considered the impact of this rulemaking under Executive
Order 12866 the Department of Transportation's regulatory policies and
procedures. This rulemaking has been determined to be significant by
the Office of Management and Budget under Executive Order 12866 because
of congressional interest. For the same reason, this action has also
been determined to be significant under DOT's regulatory policies and
procedures. A detailed discussion of impacts can be found in the Final
Regulatory Evaluation (FRE) that the agency has prepared for this
rulemaking and filed in the docket. This action does not impose
requirements on the design or production of motor vehicles or motor
vehicle equipment; it only requires reporting of information in the
possession of the manufacturer.
Regulatory Flexibility Act. The Regulatory Flexibility Act of 1980
(5 U.S.C. Sec. 601 et seq.) requires agencies to evaluate the potential
effects of their proposed and final rules on small businesses, small
organizations and small governmental jurisdictions. Business entities
are defined as small by standard industry classification for the
purposes of receiving Small Business Administration (SBA) assistance.
One of the criteria for determining size, as stated in 13 CFR 121.201,
is the number of employees in the firm; another criteria is annual
receipts. For establishments primarily engaged in manufacturing or
assembling automobiles, light and heavy duty trucks, buses, motor
homes, new tires, or motor vehicle body manufacturing, the firm must
have less than 1,000 employees to be classified as a small business.
For establishments manufacturing many of the safety systems for which
reporting will be required, steering, suspension, brakes, engines and
power trains, or electrical system, or other motor vehicle parts not
mentioned specifically in this paragraph, the firm must have less than
750 employees to be classified as a small business. For establishments
manufacturing truck trailers, motorcycles, child restraints, lighting,
motor vehicle seating and interior trim packages, alterers and second-
stage manufacturers, or re-tread tires the firm must have less than 500
employees to be classified as a small business.
In Section VII.D, Periodic Review, above, we noted that there is
some uncertainty about the number of small businesses who may be
subject to reporting requirements beyond incidents involving death.
Below we estimate that there could be as few as 15 or as many as
hundreds that produce more than 500 vehicles. Because of the
uncertainty, we are conducting a review of this industry to determine
how many small businesses would be subject to more extensive reporting,
which is expected to be completed by mid-2005.
There may also be some uncertainty about the impacts. In our view,
the more extensive reporting required of these small businesses will
not impose a cost burden on them that is significantly different from
the burden on those producing fewer than 500 vehicles. The costs of
reporting are directly related to the volume of reportable
communications submitted to manufacturers. Even though some small
businesses would be reporting on more categories of information and at
more frequent intervals, the total number of reportable communications
would probably be low enough that the company would be able to use its
existing computers with commercially available software to prepare its
reports, without having to invest in a new computer system. However, we
will want to confirm this as part of our review.
Based on the best information available to us at this time, I
certify that this final rule will not have a significant
[[Page 45871]]
economic impact on a substantial number of small entities. Information
on the number of small businesses manufacturing relevant equipment or
vehicles currently sold in the United States, by product category, is
presented below.
1. Passenger cars and light trucks, including vans, SUV's and
pickups. There are 16 major manufacturers of passenger cars and light
trucks, including vans, SUV's and pickups sold in the United States.
All are large businesses by the definition of having more than 1,000
employees. In addition, NHTSA knows of four small manufacturers of
(complete) motor vehicles in the United States accounting for less than
1 percent of U.S. production, and in addition, several hundred small
enterprises that modified or completed unfinished vehicles, of which
many were van converters.
2. Medium and heavy trucks. NHTSA believes there are 12
manufacturers of medium and heavy trucks sold in the United States. All
are large businesses with more than 1,000 employees.
3. Buses. NHTSA believes there are 19 bus manufacturers, of which
14 are small manufacturers with less than 1,000 employees.
4. Motorcycles. Based on docket comments, there are 12 motorcycle
or moped manufacturers. We identified 2 motorcycle manufacturers as
small businesses with less than 500 employees.
5. Trailers. We estimate that there are 8 large trailer
manufacturers and hundreds of small businesses that manufacture
trailers (boat trailers, U-haul type trailers, horse trailers,
landscape, tree, and yard care equipment trailers, motorcycle/all-
terrain vehicle trailers, cars-in tow trailers, and work-performing
equipment trailers, e.g., compressors, signs, lights/generators, leaf
collecting/mulch, roof and road tar heating).
6. Tires. NHTSA believes there are 10 tire manufacturers, which are
all large businesses. The International Tire and Rubber Association
website indicates that there are approximately 1,126 retread tire
plants in the United States, of which approximately 95 percent are
owned/operated by small businesses with less than 500 employees.
7. Child restraint systems. Available information on child
restraint system manufacturers yields a total of 10 independent
enterprises, of which 3 have less than 500 employees and qualify as
small businesses.
8. Manufacturers of original equipment and manufacturers of
replacement equipment other than child restraint systems and tires.
While there are many manufacturers of original and replacement
equipment (other than manufacturers of child restraint systems and
tires) that are small businesses, these manufacturers will have a
reporting obligation under this regulation limited to incidents of
death involving their products. These are expected to be rare. Thus,
this rule will have only a slight impact on these manufacturers.
The agency has decided to limit the impact on small businesses by
excluding from most of the reporting requirements any vehicle
manufacturer that produces fewer than 500 vehicles a year, by category
of vehicle. This exclusion will apply to many of the small businesses
discussed above. We will also exclude registered importers (the
vehicles imported by registered importers generally comprise a mixed
fleet fabricated by more than a single company). However, these
smaller-volume manufacturers will not be exempt from the requirements
to report to us claims submitted against them for death, and to report
notices of fatalities that are alleged or proven to have been caused by
possible defects in their vehicles in the United States. We suspect
there will be very few reports per year from manufacturers that produce
fewer than 500 vehicles per year.
Executive Order 13132 (Federalism). Executive Order 13132 on
``Federalism'' requires us to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of ``regulatory policies that have federalism
implications.'' The Executive Order defines this phrase to include
regulations ``that have substantial direct effects on the States, on
the relationship between the national government and the States, or on
the distribution of power and responsibilities among the various levels
of government.'' The agency has analyzed this final rule in accordance
with the principles and criteria set forth in Executive Order 13132 and
has determined that it will not have sufficient federalism implications
to warrant consultation with State and local officials or the
preparation of a federalism summary impact statement. This final rule
regulates the manufacturers of motor vehicles and motor vehicle
equipment and will not have substantial direct effect on the States, on
the relationship between the national government and the States, or on
the distribution of power and responsibilities among the various levels
of government, as specified in Executive Order 13132.
Civil Justice Reform. This final rule will not have a retroactive
or preemptive effect, and judicial review of it may be obtained
pursuant to 5 U.S.C. 702. That section does not require that a petition
for reconsideration be filed prior to seeking judicial review.
Paperwork Reduction Act. The final rule requires manufacturers of
motor vehicles and motor vehicle equipment to report information and
data to NHTSA periodically. While we have not adopted a standardized
form for reporting information, we will be requiring manufacturers to
submit information utilizing specified templates. The provisions of
this rule, including document retention provisions, are considered to
be information collection requirements, as that term is defined by the
Office of Management and Budget (OMB) in 5 CFR Part 1320. We have
requested and received emergency clearance from OMB for the information
collection required by this rule. The clearance number is 2127-0616,
expiration date September 30, 2002. To obtain a three-year clearance
for information collection, we published a Paperwork Reduction Act
notice on June 25, 2002 (67 FR 42843) pursuant to the requirements of
the Paperwork Reduction Act (44 U.S.C. 3501 et seq.). Comments are due
by August 26, 2002. We request that comments relating to the Paperwork
Reduction Act be directed to that notice.
Data Quality Guidelines
The information that NHTSA is mandated to collect may be made
available to the public via the agency's website. The distribution of
such data via the agency's website may constitute ``information
dissemination'' as that term is defined under the Guidelines for
Ensuring and Maximizing the Quality, Objectivity, Utility, and
Integrity of Information Disseminated by Federal Agencies
(``Information Quality Guidelines'') issued by the Office of Management
and Budget (OMB) (67 FR 8452, Feb. 22, 2002) and prepared, in draft
form, by the Department of Transportation (DOT) (67 FR 21319, Apr. 30.
2002). DOT's final Guidelines will be issued by October 1, 2002.
If a determination were made that the public distribution of the
early warning data constituted information dissemination and was,
therefore, subject to the OMB/DOT Information Quality Guidelines, then
the agency would review the information prior to distribution to
ascertain its utility, objectivity, and integrity (collectively,
``quality''). Under the Guidelines, any affected person who believed
that the
[[Page 45872]]
information ultimately disseminated by NHTSA was of insufficient
quality could file a complaint with the agency. The agency would review
the disputed information, make an initial determination of whether it
agreed with the complainant, and notify the complainant of its initial
determination. Once notified of the initial determination, the affected
person could file an appeal with the agency.
List of Subjects
49 CFR Part 573
Motor vehicle equipment, Motor vehicle safety, Motor vehicles,
Reporting and recordkeeping requirements, Tires.
49 CFR Part 574
Labeling, Motor vehicle safety, Motor vehicles, Reporting and
recordkeeping requirements, Rubber and rubber products, Tires.
49 CFR Part 576
Motor vehicle safety, Reporting and recordkeeping requirements.
49 CFR Part 579
Imports, Motor vehicle safety, Motor vehicles, Reporting and
recordkeeping requirements.
In consideration of the foregoing, 49 CFR chapter V is amended as
follows:
PART 573--DEFECT AND NONCOMPLIANCE RESPONSIBILITY AND REPORTS
1. Part 573 heading is revised to read as set forth above.
2. The authority citation for part 573 is revised to read as
follows:
Authority: 49 U.S.C. 30102-103, 30112, 30117-121, 30166-167;
delegation of authority at 49 CFR 1.50.
3. Section 573.1 is revised to read as follows:
Sec. 573.1 Scope.
This part:
(a) Sets forth the responsibilities under 49 U.S.C. 30117-30120 of
manufacturers of motor vehicles and motor vehicle equipment with
respect to safety-related defects and noncompliances with Federal motor
vehicle safety standards in motor vehicles and items of motor vehicle
equipment; and
(b) Specifies requirements for--
(1) Manufacturers to maintain lists of purchasers and owners
notified of defective and noncomplying motor vehicles and motor vehicle
original and replacement equipment,
(2) Reporting to the National Highway Traffic Safety Administration
(NHTSA) defects in motor vehicles and motor vehicle equipment and
noncompliances with motor vehicle safety standards prescribed under
part 571 of this chapter, and
(3) Providing quarterly reports on defect and noncompliance
notification campaigns.
4. Section 573.2 is revised to read as follows:
Sec. 573.2 Purposes.
The purposes of this part are:
(a) To facilitate the notification of owners of defective and
noncomplying motor vehicles and items of motor vehicle equipment, and
the remedy of such defects and noncompliances, by equitably
apportioning the responsibility for safety-related defects and
noncompliances with Federal motor vehicle safety standards among
manufacturers of motor vehicles and motor vehicle equipment; and
(b) To inform NHTSA of defective and noncomplying motor vehicles
and items of motor vehicle equipment, and to obtain information for
NHTSA on the adequacy of manufacturers' defect and noncompliance
notification campaigns, on corrective action, on owner response, and to
compare the defect incidence rate among different groups of vehicles.
5. Section 573.4 is amended by adding in alphabetical order
definitions for Original equipment and Replacement equipment to read as
follows:
Sec. 573.4 Definitions.
* * * * *
Original equipment means an item of motor vehicle equipment (other
than a tire) that was installed in or on a motor vehicle at the time of
its delivery to the first purchaser if the item of equipment was
installed on or in the motor vehicle at the time of its delivery to a
dealer or distributor for distribution, or was installed by the dealer
or distributor with the express authorizations of the motor vehicle
manufacturer.
* * * * *
Replacement equipment means motor vehicle equipment other than
original equipment as defined in this section, and tires.
Sec. 573.8 [Removed]
6. Section 573.8 is removed.
Secs. 573.5 through 573.7 [Redesignated as Secs. 573.6 through 573.8]
7. Sections 573.5 through 573.7 are redesignated as Secs. 573.6
through 573.8 respectively.
8. New Sec. 573.5 is added to read as follows:
Sec. 573.5 Defect and noncompliance responsibility.
(a) Each manufacturer of a motor vehicle shall be responsible for
any safety-related defect or any noncompliance determined to exist in
the vehicle or in any item of original equipment.
(b) Each manufacturer of an item of replacement equipment shall be
responsible for any safety-related defect or any noncompliance
determined to exist in the equipment.
PART 574--TIRE IDENTIFICATION AND RECORDKEEPING
9. The authority citation for part 574 is revised to read as
follows:
Authority: 49 U.S.C. 322, 30111, 30115, 30117, and 30166;
delegation of authority at 49 CFR 1.50.
10. Section 574.7(d) preceding the graphic is revised to read as
follows:
Sec. 574.7 Information requirements--new tire manufacturers, new tire
brand name owners.
* * * * *
(d) The information that is specified in paragraph (a)(4) of this
section and recorded on registration forms submitted to a tire
manufacturer or its designee shall be maintained for a period of not
less than five years from the date on which the information is recorded
by the manufacturer or its designee.
* * * * *
11. Section 574.10 is amended by revising the last sentence to read
as follows:
Sec. 574.10 Requirements for motor vehicle manufacturers.
* * * These records shall be maintained for a period of not less
than 5 years from the date of sale of the vehicle to the first
purchaser for purposes other than resale.
PART 576--RECORD RETENTION
12. The authority citation for part 576 is revised to read as
follows:
Authority: 49 U.S.C. 322(a), 30117, 30120(g), 30141-30147;
delegation of authority at 49 CFR 1.50.
13. Section 576.1 is revised to read as follows:
Sec. 576.1 Scope.
This part establishes requirements for the retention by
manufacturers of motor vehicles and of motor vehicle equipment, of
claims, complaints, reports, and other records concerning alleged and
proven motor vehicle or motor vehicle equipment defects and
[[Page 45873]]
malfunctions that may be related to motor vehicle safety.
14. Section 576.3 is revised to read as follows:
Sec. 576.3 Application.
This part applies to all manufacturers of motor vehicles, with
respect to all records generated or acquired on or after August 16,
1969, and to all manufacturers of motor vehicle equipment, with respect
to all records in their possession, generated or acquired on or after
August 9, 2002.
15. Section 576.4 is revised to read as follows:
Sec. 576.4 Definitions.
All terms in this part that are defined in 49 U.S.C. 30102 and part
579 of this chapter are used as defined therein.
16. Section 576.5 is revised to read as follows:
Sec. 576.5 Basic requirements.
(a) Each manufacturer of motor vehicles, child restraint systems,
and tires shall retain, as specified in Sec. 576.7 of this part, all
records described in Sec. 576.6 of this part for a period of five
calendar years from the date on which they were generated or acquired
by the manufacturer.
(b) Each manufacturer of motor vehicles and motor vehicle equipment
shall retain, as specified in Sec. 576.7 of this part, all the
underlying records on which the information reported under part 579 of
this chapter is based, for a period of five calendar years from the
date on which they were generated or acquired by the manufacturer,
except as provided in paragraph (c) of this section.
(c) Manufacturers need not retain copies of documents transmitted
to NHTSA pursuant to parts 573, 577, and 579 of this chapter.
17. Section 576.6 is revised to read as follows:
Sec. 576.6 Records.
Records to be maintained by manufacturers under this part include
all documentary materials, films, tapes, and other information-storing
media that contain information concerning malfunctions that may be
related to motor vehicle safety. Such records include, but are not
limited to, reports and other documents, including material generated
or communicated by computer, telefax or other electronic means, that
are related to work performed under warranties; and any lists,
compilations, analyses, or discussions of such malfunctions contained
in internal or external correspondence of the manufacturer, including
communications transmitted electronically.
18. Part 579 is revised to read as follows:
PART 579--REPORTING OF INFORMATION AND COMMUNICATIONS ABOUT
POTENTIAL DEFECTS
Subpart A--General
Sec.
579.1 Scope.
579.2 Purpose.
579.3 Application.
579.4 Terminology.
579.5 Notices, bulletins, customer satisfaction campaigns,
consumer advisories, and other communications.
579.6 Address for submitting reports and other information.
579.7-579.10 [Reserved]
Subpart B--Reporting of Defects in Motor Vehicles and Motor Vehicle
Equipment in Countries Other Than the United States
579.11-579.20 [Reserved]
Subpart C--Reporting of Early Warning Information
579.21 Reporting requirements for manufacturers of 500 or more
light vehicles annually.
579.22 Reporting requirements for manufacturers of 500 or more
medium-heavy vehicles and buses annually.
579.23 Reporting requirements for manufacturers of 500 or more
motorcycles annually.
579.24 Reporting requirements for manufacturers of 500 or more
trailers annually.
579.25 Reporting requirements for manufacturers of child restraint
systems.
579.26 Reporting requirements for manufacturers of tires.
579.27 Reporting requirements for manufacturers of fewer than 500
vehicles annually, for manufacturers of original equipment, and for
manufacturers of replacement equipment other than child restraint
systems and tires.
579.28 Due date of reports and other miscellaneous provisions.
579.29 Manner of reporting.
Authority: Sec. 3, Pub. L. 106-414, 114 Stat. 1800 (49 U.S.C.
30102-103, 30112, 30117-121, 30166-167); delegation of authority at
49 CFR 1.50.
Subpart A--General
Sec. 579.1 Scope.
This part sets forth requirements for reporting information and
submitting documents that may help identify defects related to motor
vehicle safety and noncompliances with Federal motor vehicle safety
standards, including reports of foreign safety recalls and other
safety-related campaigns conducted outside the United States under 49
U.S.C. 30166(l), early warning information under 49 U.S.C. 30166(m),
and copies of communications about defects and noncompliances under 49
U.S.C. 30166(f).
Sec. 579.2 Purpose.
The purpose of this part is to enhance motor vehicle safety by
specifying information and documents that manufacturers of motor
vehicles and motor vehicle equipment must provide to NHTSA with respect
to possible safety-related defects and noncompliances in their
products.
Sec. 579.3 Application.
(a) This part applies to all manufacturers of motor vehicles and
motor vehicle equipment with respect to all motor vehicles and motor
vehicle equipment that have been offered for sale, sold, or leased in
the United States by the manufacturer, including any parent
corporation, any subsidiary or affiliate of the manufacturer, or any
subsidiary or affiliate of any parent corporation, and with respect to
all motor vehicles and motor vehicle equipment that have been offered
for sale, sold, or leased in a foreign country by the manufacturer,
including any parent corporation, any subsidiary or affiliate of the
manufacturer, or any subsidiary or affiliate of any parent corporation,
and are substantially similar to any motor vehicles or motor vehicle
equipment that have been offered for sale, sold, or leased in the
United States.
(b) In the case of any report required under subpart C of this
part, compliance by the fabricating manufacturer, the importer, the
brand name owner, or a parent or United States subsidiary of such
fabricator, importer, or brand name owner of the motor vehicle or motor
vehicle equipment, shall be considered compliance by all persons.
(c) With regard to any information required to be reported under
subpart C of this part, an entity covered under paragraph (a) of this
section need only review information and systems where information
responsive to subpart C of this part is kept in the usual course of
business.
Sec. 579.4 Terminology.
(a) Statutory terms. The terms dealer, defect, distributor, motor
vehicle, motor vehicle equipment, and State are used as defined in 49
U.S.C. 30102.
(b) Regulatory terms. The term Vehicle Identification Number (VIN)
is used as defined in Sec. 565.3(o) of this chapter. The terms bus,
Gross Vehicle Weight Rating (GVWR), motorcycle, multipurpose passenger
vehicle, passenger car, trailer, and truck are used as defined in
Sec. 571.3(b) of this chapter.
[[Page 45874]]
The term Booster seat is used as defined in S4 of Sec. 571.213 of this
chapter. The term Tire Identification Number (TIN) is the ``tire
identification number'' described in Sec. 574.5 of this chapter. The
term Limited production tire is used as defined in Sec. 575.104(c)(2)
of this chapter.
(c) Other terms. The following terms apply to this part:
Administrator means the Administrator of the National Highway
Traffic Safety Administration (NHTSA), or the Administrator's delegate.
Affiliate means, in the context of an affiliate of or person
affiliated with a specified person, a person that directly, or
indirectly through one or more intermediates, controls or is controlled
by, or is under common control with, the person specified. The term
person usually is a corporation.
Air bag means an air bag or other automatic occupant restraint
device (other than a ``seat belt'' as defined in this subpart)
installed in a motor vehicle that restrains an occupant in the event of
a vehicle crash without requiring any action on the part of the
occupant to obtain the benefit of the restraint. This term includes
inflatable restraints (front and side air bags), knee bolsters, and any
other automatic restraining device that may be developed that does not
include a restraining belt or harness. This term also includes all air
bag-related components, such as the inflator assembly, air bag module,
control module, crash sensors and all hardware and software associated
with the air bag. This term includes all associated switches, control
units, connective elements (such as wiring harnesses, hoses, piping,
etc.), and mounting elements (such as brackets, fasteners, etc.).
Base means the detachable bottom portion of a child restraint
system that may remain in the vehicle to provide a base for securing
the system to a seat in a motor vehicle.
Bead means all the materials in a tire below the sidewalls in the
rim contact area, including bead rubber components, the bead bundle and
rubber coating if present, the body ply and its turn-up including the
rubber coating, rubber, fabric, or metallic reinforcing materials, and
the inner-liner rubber under the bead area.
Brand name owner means a person that markets a motor vehicle or
motor vehicle equipment under its own trade name whether or not it is
the fabricator or importer of the vehicle or equipment.
Buckle and restraint harness means the components of a child
restraint system that are intended to restrain a child seated in such a
system, including the belt webbing, buckles, buckle release mechanism,
belt adjusters, belt positioning devices, and shields.
Child restraint system means any system that meets, or is offered
for sale in the United States as meeting, any definition in S4 of
Sec. 571.213 of this chapter, or that is offered for sale as a child
restraint system in a foreign country.
Claim means a written request or written demand for relief,
including money or other compensation, assumption of expenditures, or
equitable relief, related to a motor vehicle crash, accident, the
failure of a component or system of a vehicle or an item of motor
vehicle equipment, or a fire originating in or from a motor vehicle or
a substance that leaked from a motor vehicle. Claim includes, but is
not limited to, a demand in the absence of a lawsuit, a complaint
initiating a lawsuit, an assertion or notice of litigation, a
settlement, covenant not to sue or release of liability in the absence
of a written demand, and a subrogation request. A claim exists
regardless of any denial or refusal to pay it, and regardless of
whether it has been settled or resolved in the manufacturer's favor.
The existence of a claim may not be conditioned on the receipt of
anything beyond the document(s) stating a claim. Claim does not include
demands related to asbestos exposure, to emissions of volatile organic
compounds from vehicle interiors, or to end-of-life disposal of
vehicles, parts or components of vehicles, equipment, or parts or
components of equipment.
Common green tires means tires that are produced to the same
internal specifications but that have, or may have, different external
characteristics and may be sold under different tire line names.
Consumer complaint means a communication of any kind made by a
consumer (or other person) to or with a manufacturer addressed to the
company, an officer thereof or an entity thereof that handles consumer
matters, a manufacturer website that receives consumer complaints, a
manufacturer electronic mail system that receives such information at
the corporate level, or that are otherwise received by a unit within
the manufacturer that receives consumer inquiries or complaints,
including telephonic complaints, expressing dissatisfaction with a
product, or relating the unsatisfactory performance of a product, or
any actual or potential defect in a product, or any event that
allegedly was caused by any actual or potential defect in a product,
but not including a claim of any kind or a notice involving a fatality
or injury.
Customer satisfaction campaign, consumer advisory, recall, or other
activity involving the repair or replacement of motor vehicles or motor
vehicle equipment means any communication by a manufacturer to, or made
available to, more than one dealer, distributor, lessor, lessee, other
manufacturer, or owner, whether in writing or by electronic means,
relating to repair, replacement, or modification of a vehicle,
component of a vehicle, item of equipment, or a component thereof, the
manner in which a vehicle or child restraint system is to be maintained
or operated (excluding promotional and marketing materials, customer
satisfaction surveys, and operating instructions or owner's manuals
that accompany the vehicle or child restraint system at the time of
first sale); or advice or direction to a dealer or distributor to cease
the delivery or sale of specified models of vehicles or equipment.
Dealer field report means a field report from a dealer or
authorized service facility of a manufacturer of motor vehicles or
motor vehicle equipment.
Electrical system means any electrical or electronic component of a
motor vehicle that is not included in one of the other reporting
categories enumerated in subpart C of this part, and specifically
includes the battery, battery cables, alternator, fuses, and main body
wiring harnesses of the motor vehicle and the ignition system,
including the ignition switch and starter motor. The term also includes
all associated switches, control units, connective elements (such as
wiring harnesses, hoses, piping, etc.), and mounting elements (such as
brackets, fasteners, etc.).
Engine and engine cooling means the component (e.g., motor) of a
motor vehicle providing motive power to the vehicle, and includes the
exhaust system (including the exhaust emission system), the engine
control unit, engine lubrication system, and the underhood cooling
system for that engine. This term also includes all associated
switches, control units, connective elements (such as wiring harnesses,
hoses, piping, etc.), and mounting elements (such as brackets,
fasteners, etc.).
Equipment comprises original and replacement equipment: (1)
Original equipment means an item of motor vehicle equipment (other than
a tire) that was installed in or on a motor vehicle at the time of its
delivery to the first purchaser if the item of equipment was installed
on or in the motor vehicle at the time of its delivery to a dealer or
distributor for distribution; or the item
[[Page 45875]]
of equipment was installed by the dealer or distributor with the
express authorization of the motor vehicle manufacturer.
(2) Replacement equipment means motor vehicle equipment other than
original equipment, and tires.
Exterior lighting mean all the exterior lamps (including any
interior-mounted center highmounted stop lamp if mounted in the
interior of a vehicle), lenses, reflectors, and associated equipment of
a motor vehicle, including all associated switches, control units,
connective elements (such as wiring harnesses, piping, etc.), and
mounting elements (such as brackets, fasteners, etc.).
Field report means a communication in writing, including
communications in electronic form, from an employee or representative
of a manufacturer of motor vehicles or motor vehicle equipment, a
dealer or authorized service facility of such manufacturer, or by an
entity that owns or operates a fleet, to a manufacturer, regarding the
failure, malfunction, lack of durability, or other performance problem
of a motor vehicle or motor vehicle equipment, or any part thereof,
produced for sale by that manufacturer, regardless of whether verified
or assessed to be lacking in merit, but does not include a document
contained in a litigation file that was created after the date of the
filing of a civil complaint that relates to the specific vehicle,
component, or system at issue in the litigation.
Fire means combustion or burning of any material in a vehicle as
evidenced by, but not limited to, flame, smoke, sparks, or smoldering.
Fleet means more than ten motor vehicles of the same make, model,
and model year.
Fuel system means all components of a motor vehicle used to receive
and store fuel, and to transfer fuel between the vehicle's fuel
storage, engine, or fuel emission systems. This term includes, but is
not limited to, the fuel tank and filler cap, neck, and pipe, along
with associated piping, hoses, and clamps, the fuel pump, fuel lines,
connectors from the fuel tank to the engine, the fuel injection/
carburetion system (including fuel injector rails and injectors), and
the fuel vapor recovery system(s), canister(s), and vent lines. The
term also includes all associated switches, control units, connective
elements (such as wiring harnesses, hoses, piping, etc.), and mounting
elements (such as brackets, fasteners, etc.).
Good will means the repair or replacement of a motor vehicle or
item of motor vehicle equipment, including labor, paid for by the
manufacturer, at least in part, when the repair or replacement is not
covered under warranty, or under a safety recall reported to NHTSA
under part 573 of this chapter.
Incomplete light vehicle means an incomplete vehicle as defined in
Sec. 568.3 of this chapter which, when completed, will be a light
vehicle.
Integrated child restraint system means a factory-installed built-
in child restraint system as defined in S4 of Sec. 571.213 of this
chapter and includes any factory-authorized built-in child restraint
system.
Latch means a latching, locking, or linking system of a motor
vehicle and all its components fitted to a vehicle's exterior doors,
rear hatch, liftgate, tailgate, trunk, or hood. This term also
includes, but is not limited to, devices for the remote operation of a
latching device such as remote release cables (and associated
components), electric release devices, or wireless control release
devices, and includes all components covered in FMVSS No. 206. This
term also includes all associated switches, control units, connective
elements (such as wiring harnesses, hoses, piping, etc.), and mounting
elements (such as brackets, fasteners, etc.).
Light vehicle means any motor vehicle, except a bus, motorcycle, or
trailer, with a GVWR of 10,000 lbs or less.
Make means a name that a manufacturer applies to a group of
vehicles.
Manufacturer means a person manufacturing or assembling motor
vehicles or motor vehicle equipment, or importing motor vehicles or
motor vehicle equipment for resale. This term includes any parent
corporation, any subsidiary or affiliate, and any subsidiary or
affiliate of a parent corporation of such a person.
Medium-heavy vehicle means any motor vehicle, except a trailer,
with a GVWR greater than 10,000 lbs.
Minimal specificity means:
(1) for a vehicle, the make, model, and model year,
(2) for a child seat, the manufacturer and the model (either the
model name or model number),
(3) for a tire, the manufacturer, tire line, and tire size, and
(4) for other motor vehicle equipment, the manufacturer and, if
there is a model or family of models identified on the item of
equipment, the model name or model number.
Model means a name that a manufacturer of motor vehicles applies to
a family of vehicles within a make which have a degree of commonality
in construction, such as body, chassis or cab type. For equipment, it
means the name that its manufacturer uses to designate it.
Model year means the year that a manufacturer uses to designate a
discrete model of vehicle, irrespective of the calendar year in which
the vehicle was manufactured; if a year is not so designated, it means
the year the vehicle was produced. For equipment, it means the year
that the item was produced.
Notice means a document, other than a media article, that does not
include a demand for relief, and that a manufacturer receives from a
person other than NHTSA.
Parking brake means a mechanism installed in a motor vehicle which
is designed to prevent the movement of a stationary motor vehicle,
including all associated switches, control units, connective elements
(such as wiring harnesses, hoses, piping, etc.), and mounting elements
(such as brackets, fasteners, etc.).
Platform means the basic structure of a vehicle including, but not
limited to, the majority of the floorpan or undercarriage, and elements
of the engine compartment. The term includes a structure that a
manufacturer designates as a platform. A group of vehicles sharing a
common structure or chassis shall be considered to have a common
platform regardless of whether such vehicles are of the same type, are
of the same make, or are sold by the same manufacturer.
Power train means the components or systems of a motor vehicle
which transfer motive power from the engine to the wheels, including
the transmission (manual and automatic), gear selection devices and
associated linkages, clutch, constant velocity joints, transfer case,
driveline, differential(s), and all driven axle assemblies. This term
includes all associated switches, control units, connective elements
(such as wiring harnesses, hoses, piping, etc.), and mounting elements
(such as brackets, fasteners, etc.).
Property damage means physical injury to tangible property.
Property damage claim means a claim for property damage, excluding
that part of a claim, if any, pertaining solely to damage to a
component or system of a vehicle or an item of equipment itself based
on the alleged failure or malfunction of the component, system, or
item, and further excluding matters addressed under warranty.
Rear-facing infant seat means a child restraint system that
positions a child to face in the direction opposite to the
[[Page 45876]]
normal direction of travel of the motor vehicle.
Reporting period means a calendar quarter of a year, unless
otherwise stated.
Rollover means a single-vehicle crash in which a motor vehicle
rotates on its longitudinal axis to at least 90 degrees, regardless of
whether it comes to rest on its wheels.
Seats means all components of a motor vehicle that are subject to
FMVSS Nos. 202, 207, and S9 of 209, including all electrical and
electronic components within the seat that are related to seat
positioning, heating, and cooling. This term also includes all
associated switches, control units, connective elements (such as wiring
harnesses, hoses, piping, etc.), and mounting elements (such as
brackets, fasteners, etc.).
Seat belts means any belt system, other than an air bag, that may
or may not require the occupant to latch, fasten, or secure the
components of the seat belt/webbing based restraint system to ready its
use for protection of the occupant in the event of a vehicle crash.
This term includes the webbing, buckle, anchorage, retractor, belt
pretensioner devices, load limiters, and all components, hardware and
software associated with an automatic or manual seat belt system
addressed by FMVSS No. 209 or 210. This term also includes integrated
child restraint systems in vehicles, and includes any device (and all
components of that device), installed in a motor vehicle in accordance
with FMVSS No. 213, which is designed for use as a safety restraint
device for a child too small to use a vehicle's seat belts. This term
includes all vehicle components installed in accordance with FMVSS No.
225. This term also includes all associated switches, control units,
connective elements (such as wiring harnesses, hoses, piping, etc.),
and mounting elements (such as brackets, fasteners, etc.).
Seat shell means the portion of a child restraint system that
provides the structural shape, form and support for the system, and for
other components of the system such as belt attachment points, and
anchorage points to allow the system to be secured to a passenger seat
in a motor vehicle, but not including a shield.
Service brake system means all components of the service braking
system of a motor vehicle intended for the transfer of braking
application force from the operator to the wheels of a vehicle,
including the foundation braking system, such as the brake pedal,
master cylinder, fluid lines and hoses, braking assist components,
brake calipers, wheel cylinders, brake discs, brake drums, brake pads,
brake shoes, and other related equipment installed in a motor vehicle
in order to comply with FMVSS Nos. 105, 121, 122, or 135. This term
also includes systems and devices for automatic control of the brake
system such as antilock braking, traction control, stability control,
and enhanced braking. The term includes all associated switches,
control units, connective elements (such as wiring harnesses, hoses,
piping, etc.), and mounting elements (such as brackets, fasteners,
etc.).
Sidewall means the area of a tire between the tread and the bead
area, including the sidewall rubber components, the body ply and its
coating rubber under the side area, and the inner-liner rubber under
the body ply in the side area.
SKU (Stock Keeping Unit) means the alpha-numeric designation
assigned by a manufacturer to a tire product.
Steering system means all steering control system components,
including the steering system mechanism and its associated hardware,
the steering wheel, steering column, steering shaft, linkages, joints
(including tie-rod ends), steering dampeners, and power steering assist
systems. This term includes a steering control system as defined by
FMVSS No. 203 and any subsystem or component of a steering control
system, including those components defined in FMVSS No. 204. This term
also includes all associated switches, control units, connective
elements (such as wiring harnesses, hoses, piping, etc.), and mounting
elements (such as brackets, fasteners, etc.).
Structure means any part of a motor vehicle that serves to maintain
the shape and size of the vehicle, including the frame, the floorpan,
the body, bumpers, doors, tailgate, hatchback, trunk lid, hood, and
roof. The term also includes all associated mounting elements (such as
brackets, fasteners, etc.).
Suspension system means all components and hardware associated with
a motor vehicle suspension system, including the associated control
arms, steering knuckles, spindles, joints, bushings, ball joints,
springs, shock absorbers, stabilizer (anti sway) bars, and bearings
that are designed to minimize the impact on the vehicle chassis of
shocks from road surface irregularities that may be transmitted through
the wheels, and to provide stability when the vehicle is being operated
through a range of speed, load, and dynamic conditions. The term also
includes all electronic control systems and mechanisms for active
suspension control, as well as all associated components such as
switches, control units, connective elements (such as wiring harnesses,
hoses, piping, etc.), and mounting elements (such as brackets,
fasteners, etc.).
Tire means an item of motor vehicle equipment intended to interface
between the road and a motor vehicle. The term includes all the tires
of a vehicle, including the spare tire. This term also includes the
tire inflation valves, tubes, and tire pressure monitoring and
regulating systems, as well as all associated switches, control units,
connective elements (such as wiring harnesses, hoses, piping, etc.),
and mounting elements (such as brackets, fasteners, etc.).
Tire line means the entire name used by a tire manufacturer to
designate a tire product including all prefixes and suffixes as they
appear on the sidewall of a tire.
Trailer hitch means all coupling systems, devices, and components
thereof, designed to join or connect any two motor vehicles. This term
also includes all associated switches, control units, connective
elements (such as wiring harnesses, hoses, piping, etc.), and mounting
elements (such as brackets, fasteners, etc.).
Tread (also known as crown) means all materials in the tread area
of a tire including the rubber that makes up the tread, the sub-base
rubber, when present, between the tread base and the top of the belts,
the belt material, either steel and/or fabric, and the rubber coating
of the same including any rubber inserts, the body ply and its coating
rubber under the tread area of the tire, and the inner-liner rubber
under the tread.
Type means, in the context of a light vehicle, a vehicle certified
by its manufacturer pursuant to Sec. 567.4(g)(7) of this chapter as a
passenger car, multipurpose passenger vehicle, or truck, or a vehicle
identified by its manufacturer as an incomplete vehicle pursuant to
Sec. 568.4 of this chapter. In the context of a child restraint system,
it means the category of child restraint system selected from one of
the following: rear-facing infant seat, booster seat, or other.
Vehicle speed control means the systems and components of a motor
vehicle that control vehicle speed either by command of the operator or
by automatic control, including, but not limited, to the accelerator
pedal, linkages, cables, springs, speed control devices (such as cruise
control) and speed limiting devices. This term includes, but is not
limited to the items addressed by FMVSS No. 124 and all
[[Page 45877]]
associated switches, control units, connective elements (such as wiring
harnesses, hoses, piping, etc.), and mounting elements (such as
brackets, fasteners, etc.).
Visibility means the systems and components of a motor vehicle
through which a driver views the surroundings of the vehicle including
windshield, side windows, back window, and rear view mirrors, and
systems and components used to wash and wipe windshields and back
windows. This term includes those vehicular systems and components that
can affect the ability of the driver to clearly see the roadway and
surrounding area, such as the systems and components identified in
FMVSS Nos. 103, 104, and 111. This term also includes the defogger/
defroster system, the heater core, blower fan, windshield wiper
systems, mirrors, windows and glazing material, heads-up display (HUD)
systems, and exterior view-based television systems, but does not
include exterior lighting systems which are defined under ``Lighting.''
This term includes all associated switches, control units, connective
elements (such as wiring harnesses, hoses, piping, etc.), and mounting
elements (such as brackets, fasteners, etc.).
Warranty means any written affirmation of fact or written promise
made in connection with the sale or lease of a motor vehicle or motor
vehicle equipment by a manufacturer to a buyer or lessee that relates
to the nature of the material or workmanship and affirms or promises
that such material or workmanship is defect free or will meet a
specified level of performance over a specified period of time
(including any extensions of such specified period of time), or any
undertaking in writing in connection with the sale or lease by a
manufacturer of a motor vehicle or item of motor vehicle equipment to
refund, repair, replace, or take other remedial action with respect to
such product in the event that such product fails to meet the
specifications set forth in the undertaking.
Warranty adjustment means any payment or other restitution, such
as, but not limited to, replacement, repair, credit, or cash refund,
made by a tire manufacturer to a consumer or to a dealer, in
reimbursement for payment or other restitution to a consumer, pursuant
to a warranty program offered by the manufacturer.
Warranty claim means any claim paid by a manufacturer, including
provision of a credit, pursuant to a warranty program, an extended
warranty program, or good will. It does not include claims for
reimbursement for costs or expenses for work performed to remedy a
safety-related defect or noncompliance reported to NHTSA under part 573
of this chapter, or in connection with an emissions-related recall
under the Clean Air Act.
Wheel means the assembly or component of a motor vehicle to which a
tire is mounted. The term includes any item of motor vehicle equipment
used to attach the wheel to the vehicle, including inner cap nuts and
the wheel studs, bolts, and nuts.
(d) Terms related to foreign claims. For purposes of subpart C of
this part:
(1) A motor vehicle sold or in use outside the United States is
identical or substantially similar to a motor vehicle sold or offered
for sale in the United States if--
(i) Such a vehicle has been sold in Canada or has been certified as
complying with the Canadian Motor Vehicle Safety Standards;
(ii) Such a vehicle is listed in the VSP or VSA columns of Appendix
A to part 593 of this chapter;
(iii) Such a vehicle is manufactured in the United States for sale
in a foreign country; or
(iv) Such a vehicle uses the same vehicle platform as a vehicle
sold or offered for sale in the United States.
(2) An item of motor vehicle equipment sold or in use outside the
United States is identical or substantially similar to equipment sold
or offered for sale in the United States if such equipment and the
equipment sold or offered for sale in the United States have one or
more components or systems that are the same, and the component or
system performs the same function in vehicles or equipment sold or
offered for sale in the United States, regardless of whether the part
numbers are identical.
(3) A tire sold or in use outside the United States is
substantially similar to a tire sold or offered for sale in the United
States if it has the same size, speed rating, load index, load range,
number of plies and belts, and similar ply and belt construction and
materials, placement of components, and component materials,
irrespective of plant of manufacture or tire line.
Sec. 579.5 Notices, bulletins, customer satisfaction campaigns,
consumer advisories, and other communications.
(a) Each manufacturer shall furnish to NHTSA a copy of all notices,
bulletins, and other communications (including those transmitted by
computer, telefax, or other electronic means and including warranty and
policy extension communiques and product improvement bulletins) other
than those required to be submitted pursuant to Sec. 573.5(c)(9) of
this chapter, sent to more than one manufacturer, distributor, dealer,
lessor, lessee, owner, or purchaser, in the United States, regarding
any defect in its vehicles or items of equipment (including any failure
or malfunction beyond normal deterioration in use, or any failure of
performance, or any flaw or unintended deviation from design
specifications), whether or not such defect is safety-related.
(b) Each manufacturer shall furnish to NHTSA a copy of each
communication relating to a customer satisfaction campaign, consumer
advisory, recall, or other safety activity involving the repair or
replacement of motor vehicles or equipment, that the manufacturer
issued to, or made available to, more than one dealer, distributor,
lessor, lessee, other manufacturer, owner, or purchaser, in the United
States.
(c) If a notice or communication is required to be submitted under
both paragraphs (a) and (b) of this section, it need only be submitted
once.
(d) Each copy shall be in readable form and shall be submitted not
more than five working days after the end of the month in which it was
issued. Each submission shall be accompanied by a document identifying
each communication in the submission by name or subject matter and
date.
Sec. 579.6 Address for submitting reports and other information.
Information, reports, and documents required to be submitted to
NHTSA pursuant to this part, if submitted by mail, must be addressed to
the Associate Administrator for Enforcement, National Highway Traffic
Safety Administration (NHTSA), 400 7th Street, SW., Washington, D.C.
20590. Information, documents, and reports that are submitted to
NHTSA's early warning data repository shall be submitted in accordance
with Sec. 579.29 of this part. Submissions must be made by a means that
permits the sender to verify that the report was in fact received by
NHTSA and the day it was received by NHTSA.
[[Page 45878]]
Secs. 579.7-579.10 [Reserved]
Subpart B--Reporting of Defects in Motor Vehicles and Motor Vehicle
Equipment in Countries Other Than the United States
Secs. 579.11-579.20 [Reserved]
Subpart C--Reporting of Early Warning Information
Sec. 579.21 Reporting requirements for manufacturers of 500 or more
light vehicles annually.
For each reporting period, a manufacturer whose aggregate number of
light vehicles manufactured for sale, offered for sale, imported, or
sold, in the United States, during the calendar year of the reporting
period or during each of the prior two calendar years is 500 or more
shall submit the information described in this section. For paragraphs
(a) and (c) of this section, the manufacturer shall submit information
separately with respect to each make, model, and model year of light
vehicle manufactured during the reporting period and the nine model
years prior to the earliest model year in the reporting period,
including models no longer in production.
(a) Production information. Information that states the
manufacturer's name, the quarterly reporting period, the make, the
model, the model year, the type, the platform, and the production. The
production shall be stated as either the cumulative production of the
current model year to the end of the reporting period, or the total
model year production for each model year for which production has
ceased.
(b) Information on incidents involving death or injury. For all
light vehicles less than ten calendar years old at the beginning of the
reporting period:
(1) A report on each incident involving one or more deaths or
injuries occurring in the United States that is identified in a claim
against and received by the manufacturer or in a notice received by the
manufacturer which notice alleges or proves that the death or injury
was caused by a possible defect in the manufacturer's vehicle, together
with each incident involving one or more deaths occurring in a foreign
country that is identified in a claim against and received by the
manufacturer involving the manufacturer's vehicle, if that vehicle is
identical or substantially similar to a vehicle that the manufacturer
has offered for sale in the United States. The report shall be
submitted as a report on light vehicles and organized such that
incidents are reported alphabetically by make, within each make
alphabetically by model, and within each model chronologically by model
year.
(2) For each incident described in paragraph (b)(1) of this
section, the manufacturer shall separately report the make, model,
model year, and VIN of the vehicle, the incident date, the number of
deaths, the number of injuries for incidents occurring in the United
States, the State or foreign country where the incident occurred, each
system or component of the vehicle that allegedly contributed to the
incident, and whether the incident involved a fire or rollover, coded
as follows: 01 steering system, 02 suspension system, 03 service brake
system, 05 parking brake, 06 engine and engine cooling system, 07 fuel
system, 10 power train, 11 electrical system, 12 exterior lighting, 13
visibility, 14 air bags, 15 seat belts, 16 structure, 17 latch, 18
vehicle speed control, 19 tires, 20 wheels, 22 seats, 23 fire, 24
rollover, 98 where a system or component not covered by categories 01
through 22 is specified in the claim or notice, and 99 where no system
or component of the vehicle is specified in the claim or notice. If an
incident involves more than one such code, each shall be reported
separately in the report with a limit of five codes to be included.
(c) Numbers of property damage claims, consumer complaints,
warranty claims, and field reports. Separate reports on the numbers of
those property damage claims, consumer complaints, warranty claims, and
field reports which involve the systems and components that are
specified in codes 01 through 22 in paragraph (b)(2) of this section,
or a fire (code 23), or rollover (code 24). Each such report shall
state, separately by each such code, the number of such property damage
claims, consumer complaints, warranty claims, or field reports,
respectively, that involves the systems or components or fire or
rollover indicated by the code. If an underlying property damage claim,
consumer complaint, warranty claim, or field report involves more than
one such code, each shall be reported separately in the report with no
limit on the number of codes to be included. No reporting is necessary
if the system or component involved is not specified in such codes, and
the incident did not involve a fire or rollover.
(d) Copies of field reports. For all light vehicles less than ten
calendar years old as of the beginning of the reporting period, a copy
of each field report (other than a dealer report) involving one or more
of the systems or components identified in paragraph (b)(2) of this
section, or fire, or rollover, containing any assessment of an alleged
failure, malfunction, lack of durability, or other performance problem
of a motor vehicle or item of motor vehicle equipment (including any
part thereof) that is originated by an employee or representative of
the manufacturer and that the manufacturer received during a reporting
period. These documents shall be submitted alphabetically by make,
within each make alphabetically by model, and within each model
chronologically by model year.
Sec. 579.22 Reporting requirements for manufacturers of 500 or more
medium-heavy vehicles and buses annually.
For each reporting period, a manufacturer whose aggregate number of
medium-heavy vehicles and buses manufactured for sale, offered for
sale, imported, or sold, in the United States, during the calendar year
of the reporting period or during either of the prior two calendar
years is 500 or more shall submit the information described in this
section. For paragraphs (a) and (c) of this section, the manufacturer
shall submit information separately with respect to each make, model,
and model year of medium-heavy vehicle and bus manufactured during the
reporting period and the nine model years prior to the earliest model
year in the reporting period, including models no longer in production.
(a) Production information. Information that states the
manufacturer's name, the quarterly reporting period, the make, the
model, the model year, and the production. The production shall be
stated as either the cumulative production of the current model year to
the end of the reporting period, or the total model year production for
each model year for which production has ceased. For each model that is
manufactured and available with more than one type of fuel system
(i.e., gasoline, diesel, or other (including vehicles that can be
operated using more than one type of fuel, such as gasoline and
compressed natural gas)), the information required by this subsection
shall be reported separately by each of the three fuel system types.
For each model that is manufactured and available with more than one
type of service brake system (i.e., hydraulic or air), the information
required by this subsection shall be reported by each of the two brake
types. If the service brake system in a vehicle is not readily
characterized as either hydraulic or air, the vehicle shall be
considered to have hydraulic service brakes.
(b) Information on incidents involving death or injury. For all
medium-heavy
[[Page 45879]]
vehicles and buses less than ten calendar years old at the beginning of
the reporting period:
(1) A report on each incident involving one or more deaths or
injuries occurring in the United States that is identified in a claim
against and received by the manufacturer or in a notice received by the
manufacturer which notice alleges or proves that the death or injury
was caused by a possible defect in the manufacturer's vehicle, together
with each incident involving one or more deaths occurring in a foreign
country that is identified in a claim against and received by the
manufacturer involving the manufacturer's vehicle, if that vehicle is
identical or substantially similar to a vehicle that the manufacturer
has offered for sale in the United States. The report shall be
submitted as a report on medium-heavy vehicles and buses and organized
such that incidents are reported alphabetically by make, within each
make alphabetically by model, and within each model chronologically by
model year.
(2) For each incident described in paragraph (b)(1) of this
section, the manufacturer shall separately report the make, model,
model year, and VIN of the medium-heavy vehicle or bus, the incident
date, the number of deaths, the number of injuries for incidents
occurring in the United States, the State or foreign country where the
incident occurred, each system or component of the vehicle that
allegedly contributed to the incident, and whether the incident
involved a fire or rollover, coded as follows: 01 steering system, 02
suspension system, 03 service brake system, hydraulic, 04 service brake
system, air, 05 parking brake, 06 engine and engine cooling system, 07
fuel system, gasoline, 08 fuel system, diesel, 09 fuel system, other,
10 power train, 11 electrical, 12 exterior lighting, 13 visibility, 14
air bags, 15 seat belts, 16 structure, 17 latch, 18 vehicle speed
control, 19 tires, 20 wheels, 21 trailer hitch, 22 seats, 23 fire, 24
rollover, 98 where a system or component not covered by categories 01
through 22 is specified in the claim or notice, and 99 where no system
or component of the vehicle is specified in the claim or notice. If an
incident involves more than one such code, each shall be reported
separately in the report with a limit of five codes to be included.
(c) Numbers of property damage claims, consumer complaints,
warranty claims, and field reports. Separate reports on the numbers of
those property damage claims, consumer complaints, warranty claims, and
field reports which involve the systems and components that are
specified in codes 01 through 22 in paragraph (b)(2) of this section,
or a fire (code 23), or rollover (code 24). Each such report shall
state, separately by each such code, the number of such property damage
claims, consumer complaints, warranty claims, or field reports,
respectively, that involves the systems or components or fire or
rollover indicated by the code. If an underlying property damage claim,
consumer complaint, warranty claim, or field report involves more than
one such code, each shall be reported separately in the report with no
limit on the number of codes to be included. No reporting is necessary
if the system or component involved is not specified in such codes, and
the incident did not involve a fire or rollover.
(d) Copies of field reports. For all medium-heavy vehicles and
buses less than ten calendar years old as of the beginning of the
reporting period, a copy of each field report (other than a dealer
report) involving one or more of the systems or components identified
in paragraph (b)(2) of this section, or fire, or rollover, containing
any assessment of an alleged failure, malfunction, lack of durability
or other performance problem of a motor vehicle or item of motor
vehicle equipment (including any part thereof) that is originated by an
employee or representative of the manufacturer and that the
manufacturer received during a reporting period. These documents shall
be submitted alphabetically by make, within each make alphabetically by
model, and within each model chronologically by model year.
Sec. 579.23 Reporting requirements for manufacturers of 500 or more
motorcycles annually.
For each reporting period, a manufacturer whose aggregate number of
motorcycles manufactured for sale, offered for sale, imported, or sold,
in the United States, during the calendar year of the reporting period
or during either of the prior two calendar years is 500 or more shall
submit the information described in this section. For paragraphs (a)
and (c) of this section, the manufacturer shall submit information
separately with respect to each make, model, and model year of
motorcycle manufactured during the reporting period and the nine model
years prior to the earliest model year in the reporting period,
including models no longer in production.
(a) Production information. Information that states the
manufacturer's name, the quarterly reporting period, the make, the
model, the model year, and the production. The production shall be
stated as either the cumulative production of the current model year to
the end of the reporting period, or the total model year production for
each model year for which production has ceased.
(b) Information on incidents involving death or injury. For all
motorcycles less than ten calendar years old as of the beginning of the
reporting period:
(1) A report on each incident involving one or more deaths or
injuries occurring in the United States that is identified in a claim
against and received by the manufacturer or in a notice received by the
manufacturer which notice alleges or proves that the death or injury
was caused by a possible defect in the manufacturer's motorcycle,
together with each incident involving one or more deaths occurring in a
foreign country that is identified in a claim against and received by
the manufacturer involving the manufacturer's motorcycle, if that
motorcycle is identical or substantially similar to a motorcycle that
the manufacturer has offered for sale in the United States. The report
shall be submitted as a report on motorcycles and organized such that
incidents are reported alphabetically by make, within each make
alphabetically by model, and within each model chronologically by model
year.
(2) For each incident described in paragraph (b)(1) of this
section, the manufacturer shall separately report the make, model,
model year, and VIN of the motorcycle, the incident date, the number of
deaths, the number of injuries for incidents occurring in the United
States, the State or foreign country where the incident occurred, each
system or component of the motorcycle that allegedly contributed to the
incident, and whether the incident involved a fire, coded as follows:
01 steering, 02 suspension, 03 service brake system, 06 engine and
engine cooling, 07 fuel system, 10 power train, 11 electrical, 12
exterior lighting, 16 structure,18 vehicle speed control, 19 tires, 20
wheels, 23 fire, 98 where a system or component not covered by
categories 01 through 20 is specified in the claim or notice, and 99
where no system or component of the vehicle is specified in the claim
or notice. If an incident involves more than one such code, each shall
be reported separately in the report with a limit of five codes to be
included.
(c) Numbers of property damage claims, consumer complaints,
warranty claims, and field reports. Separate reports on the numbers of
those property damage claims, consumer complaints, warranty claims, and
field
[[Page 45880]]
reports which involve the systems and components that are specified in
codes 01 through 22 in paragraph (b)(2) of this section, or a fire
(code 23). Each such report shall state, separately by each such code,
the number of such property damage claims, consumer complaints,
warranty claims, or field reports, respectively, that involves the
systems or components or fire indicated by the code. If an underlying
property damage claim, consumer complaint, warranty claim, or field
report involves more than one such code, each shall be reported
separately in the report with no limit on the number of codes to be
included. No reporting is necessary if the system or component involved
is not specified in such codes, and the incident did not involve a
fire.
(d) Copies of field reports. For all motorcycles less than ten
years old as of the date of the beginning of the reporting period, a
copy of each field report (other than a dealer report) involving one or
more of the components identified in paragraph (b)(2) of this section,
or fire, containing any assessment of an alleged failure, malfunction,
lack of durability or other performance problem of a motor vehicle or
item of motor vehicle equipment (including any part thereof) that is
originated by an employee or representative of the manufacturer and
that the manufacturer received during a reporting period. These
documents shall be submitted alphabetically by make, within each make
alphabetically by model, and within each model chronologically by model
year.
Sec. 579.24 Reporting requirements for manufacturers of 500 or more
trailers annually.
For each reporting period, a manufacturer whose aggregate number of
trailers manufactured for sale, offered for sale, imported, or sold, in
the United States, during the calendar year of the reporting period or
during either of the prior two calendar years is 500 or more shall
submit the information described in this section. For paragraphs (a)
and (c) of this section, the manufacturer shall submit information with
respect to each make, model and model year of trailer manufactured
during the reporting period and the nine model years prior to the
earliest model year in the reporting period, including models no longer
in production.
(a) Production information. Information that states the
manufacturer's name, the quarterly reporting period, the make, the
model, the model year, and the production. The production shall be
stated as either the cumulative production of the current model year to
the end of the reporting period, or the total model year production for
each model year for which production has ceased. For each model that is
manufactured and available with more than one type of service brake
system (i.e., hydraulic or air), the information required by this
subsection shall be reported by each of the two brake types. If the
service brake system in a trailer is not readily characterized as
either hydraulic or air, the trailer shall be considered to have
hydraulic service brakes.
(b) Information on incidents involving death or injury. For all
trailers less than ten calendar years old as of the beginning of the
reporting period:
(1) A report on each incident involving one or more deaths or
injuries occurring in the United States that is identified in a claim
against and received by the manufacturer or in a notice received by the
manufacturer which notice alleges or proves that the death or injury
was caused by a possible defect in the manufacturer's trailer, together
with each incident involving one or more deaths occurring in a foreign
country that is identified in a claim against and received by the
manufacturer involving the manufacturer's trailer, if that trailer is
identical or substantially similar to a trailer that the manufacturer
has offered for sale in the United States. The report shall be
submitted as a report on trailers and organized such that incidents are
reported alphabetically by make, with each make alphabetically by
model, and within each model chronologically by model year.
(2) For each incident described in paragraph (b)(1) of this
section, the manufacturer shall separately report the make, model,
model year, and VIN of the trailer, the incident date, the number of
deaths, the number of injuries for incidents occurring in the United
States, the State or foreign country where the incident occurred, each
system or component of the trailer that allegedly contributed to the
incident, and whether the incident involved a fire, coded as follows:
02 suspension, 03 service brake system, hydraulic, 04 service brake
system, air, 05 parking brake, 11 electrical, 12 exterior lighting, 16
structure, 17 latch, 19 tires, 20 wheels, 21 trailer hitch, 23 fire, 98
where a system or component not covered by categories 02 through 21 is
specified in the claim or notice, and 99 where no system or component
of the trailer is specified in the claim or notice. If an incident
involves more than one such code, each shall be reported separately in
the report with a limit of five codes to be included.
(c) Numbers of property damage claims, consumer complaints,
warranty claims, and field reports. Separate reports on the numbers of
those property damage claims, consumer complaints, warranty claims, and
field reports which involve the systems and components that are
specified in codes 02 through 21 in paragraph (b)(2) of this section,
or a fire (code 23). Each such report shall state, separately by each
such code, the number of such property damage claims, consumer
complaints, warranty claims, or field reports, respectively, that
involves the systems or components or fire indicated by the code. If an
underlying property damage claim, consumer complaint, warranty claim,
or field report involves more than one such code, each shall be
reported separately in the report with no limit on the number of codes
to be included. No reporting is necessary if the system or component
involved is not specified in such codes, and the incident did not
involve a fire.
(d) Copies of field reports. For all trailers less than ten
calendar years old as of the beginning of the reporting period, a copy
of each field report (other than a dealer report) involving one or more
of the systems or components identified in paragraph (b)(2) of this
section, or fire, containing any assessment of an alleged failure,
malfunction, lack of durability or other performance problem of a motor
vehicle or item of motor vehicle equipment (including any part thereof)
that is originated by an employee or representative of the manufacturer
and that the manufacturer received during a reporting period. These
documents shall be submitted alphabetically by make, with each make
alphabetically by model, and within each model chronologically by model
year.
Sec. 579.25 Reporting requirements for manufacturers of child
restraint systems.
For each reporting period, a manufacturer who has manufactured for
sale, offered for sale, imported, or sold child restraint systems in
the United States shall submit the information described in this
section. For paragraphs (a) and (c) of this section, the manufacturer
shall submit information separately with respect to each make, model,
and production year of child restraint system manufactured during the
reporting period and the four production years prior to the earliest
production year in the reporting period, including models no longer in
production.
(a) Production information. Information that states the
manufacturer's name, the quarterly
[[Page 45881]]
reporting period, the make, the model, the production year, and the
production. The production shall be stated as either the cumulative
production of the current model year to the end of the reporting
period, or the total calendar year production for each calendar year
for which production has ceased.
(b) Information on incidents involving death or injury. For all
child restraint systems less than five calendar years old as of the
beginning of the reporting period:
(1) A report on each incident involving one or more deaths or
injuries occurring in the United States that is identified in a claim
against and received by the manufacturer or in a notice received by the
manufacturer which notice alleges or proves that the death or injury
was caused by a possible defect in the manufacturer's child restraint
system, together with each incident involving one or more deaths
occurring in a foreign country that is identified in a claim against
and received by the manufacturer involving the manufacturer's child
restraint system, if the child restraint system is identical or
substantially similar to a child restraint system that the manufacturer
has offered for sale in the United States. The report shall be
submitted as a report on child restraint systems and organized such
that incidents are reported alphabetically by make, within each make
alphabetically by model, and within each model chronologically by
production year.
(2) For each such incident described in paragraph (b)(1) of this
section, the manufacturer shall separately report the make, model, and
production year of the child restraint system, the incident date, the
number of deaths, the number of injuries for incidents occurring in the
United States, the State or foreign country where the incident
occurred, and each system or component of the child restraint system
that allegedly contributed to the incident, coded as follows: 51 buckle
and restraint harness, 52 seat shell, 53 handle, 54 base, 98 where a
system or component not covered by categories 51 through 54 is
specified in the claim or notice, and 99 where no system or component
of the child restraint system is specified in the claim or notice. If
an incident involves more than one such code, each shall be reported
separately in the report.
(c) Numbers of consumer complaints and warranty claims, and field
reports. Separate reports on the numbers of those consumer complaints
and warranty claims, and field reports, which involve the systems and
components that are specified in codes 51 through 54 in paragraph
(b)(2) of this section. Each such report shall state, separately by
each such code, the number of such consumer complaints and warranty
claims, or field reports, respectively, that involves the systems or
components indicated by the code. If an underlying consumer complaint
and warranty claim, or field report, involves more than one such code,
each shall be counted separately in the report with no limit on the
number of codes to be included. No reporting is necessary if the system
or component involved is not specified in such codes.
(d) Copies of field reports. For all child restraint systems less
than five years old as of the beginning of the reporting period, a copy
of each field report (other than a dealer field report) involving one
or more of the systems or components identified in paragraph (b)(2) of
this section, containing any assessment of an alleged failure,
malfunction, lack of durability or other performance problem of the
child restraint system (including any part thereof) that is originated
by an employee or representative of the manufacturer and that the
manufacturer received during the reporting period. These documents
shall be submitted alphabetically by make, within each make
alphabetically by model, and within each model chronologically by
production year.
Sec. 579.26 Reporting requirements for manufacturers of tires.
For each reporting period, a manufacturer (including a brand name
owner) who has manufactured for sale, offered for sale, imported, or
sold tires in the United States shall submit the information described
in this section. For paragraphs (a) and (c) of this section, the
manufacturer shall submit information separately with respect to each
tire line, size, SKU, plant where manufactured, and model year of tire
manufactured during the reporting period and the four calendar years
prior to the earliest model year in the reporting period including tire
lines no longer in production. For tires that are limited production
tires or are otherwise exempted from the Uniform Tire Quality Grading
Standards by Sec. 575.104(c)(1) of this chapter, or are not passenger
car tires, light truck tires, or motorcycle tires, the manufacturer
need report only information on incidents involving a death, as
specified in paragraph (b) of this section.
(a) Production information. Information that states the
manufacturer's name, the quarterly reporting period, the tire line, the
tire size, the tire type code, the SKU, the plant where manufactured,
whether the tire is approved for use as original equipment on a motor
vehicle, if so, the make, model, and model year of each vehicle for
which it is approved, the production year, the cumulative warranty
production, and the cumulative total production through the end of the
reporting period.
(b) Information on incidents involving death or injury. (1) A
report on each incident involving one or more deaths or injuries
occurring in the United States that is identified in a claim against
and received by the manufacturer or in a notice received by the
manufacturer which notice alleges or proves that the death or injury
was caused by a possible defect in the manufacturer's tire, together
with each incident involving one or more deaths occurring in a foreign
country that is identified in a claim against and received by the
manufacturer involving the manufacturer's tire, if that tire is
identical or substantially similar to a tire that the manufacturer has
offered for sale in the United States. The report shall be submitted as
a report on tires and organized such that incidents are reported
alphabetically by tire line, within each tire line by tire size, and
within each tire size chronologically by production year.
(2) For each such incident described in paragraph (b)(1) of this
section, the manufacturer shall separately report the tire line, size,
and production year of the tire, the TIN, the incident date, the number
of deaths, the number of injuries for incidents occurring in the United
States, the State or foreign country where the incident occurred, the
make, model, and model year of the vehicle on which the tire was
installed, and each component of the tire that allegedly contributed to
the incident, coded as follows: 71 tread, 72 sidewall, 73 bead, 98
where a component not covered by categories 71 through 73 is specified
in the claim or notice, and 99 where no component of the tire is
specified in the claim or notice. If an incident involves more than one
such code, each shall be reported separately in the report.
(c) Numbers of property damage claims and warranty adjustments.
Separate reports on the numbers of those property damage claims and
warranty adjustments which involve the components that are specified in
codes 71 through 73, and 98, in paragraph (b)(2) of this section. Each
such report shall state, separately by each such code, the numbers of
such property damage claims and warranty adjustments, respectively,
that involve the components indicated by the code.
[[Page 45882]]
If an underlying property damage claim or warranty adjustment involves
more than one such code, each shall be reported separately in the
report with no limit on the number of codes to be included. No
reporting is necessary if the system or component involved is not
specified in such codes.
(d) Common green tire reporting. With each quarterly report, each
manufacturer of tires shall provide NHTSA with a list of common green
tires. For each specific common green tire grouping, the list shall
provide all relevant tire lines, tire type codes, SKU numbers, plant
where manufactured, brand names, and brand name owners.
Sec. 579.27 Reporting requirements for manufacturers of fewer than 500
vehicles annually, for manufacturers of original equipment, and for
manufacturers of replacement equipment other than child restraint
systems and tires.
(a) Applicability. This section applies to all manufacturers of
motor vehicles that are not required to file a report pursuant to
Secs. 579.21 through 579.24 of this part, to all manufacturers of
original equipment, to all manufacturers of replacement equipment other
than manufacturers of tires and child restraint systems, and to
registered importers registered under 49 U.S.C. 30141(c).
(b) Information on incidents involving deaths. For each reporting
period, a manufacturer to which this section applies shall submit a
report, pertaining to vehicles and/or equipment manufactured or sold
during the calendar year of the reporting period and the nine calendar
years prior to the reporting period (four calendar years for
equipment), including models no longer in production, on each incident
involving one or more deaths occurring in the United States that is
identified in a claim against and received by the manufacturer or in a
notice received by the manufacturer which notice alleges or proves that
the death was caused by a possible defect in the manufacturer's vehicle
or equipment, together with each incident involving one or more deaths
occurring in a foreign country that is identified in a claim against
and received by the manufacturer involving the manufacturer's vehicle
or equipment, if it is identical or substantially similar to a vehicle
or item of equipment that the manufacturer has offered for sale in the
United States. The report shall be organized such that incidents are
reported alphabetically by make, within each make alphabetically by
model, and within each model chronologically by model year.
(c) For each incident described in paragraph (b) of this section,
the manufacturer shall separately report the make, model, and model
year of the vehicle or equipment, the VIN (for vehicles only), the
incident date, the number of deaths, the number of injuries for
incidents occurring in the United States, the State or foreign country
where the incident occurred, each system or component of the vehicle or
equipment that allegedly contributed to the incident, and whether the
incident involved a fire or rollover, as follows:
(1) For light vehicles, the system or component involved, and the
existence of a fire or rollover, shall be identified and coded as
specified in Sec. 579.21(b)(2) of this part.
(2) For medium-heavy vehicles and buses, the system or component
involved, and the existence of a fire or rollover, shall be identified
and coded as specified in Sec. 579.22(b)(2) of this part.
(3) For motorcycles, the system or component involved, and the
existence of a fire, shall be identified and coded as specified in
Sec. 579.23(b)(2) of this part.
(4) For trailers, the system or component involved, and the
existence of a fire, shall be identified and coded as specified in
Sec. 579.24(b)(2) of this part.
(5) For original and replacement equipment, a written
identification of each component of the equipment that was allegedly
involved, and whether there was a fire, in the manufacturer's own
words.
Sec. 579.28 Due date of reports and other miscellaneous provisions.
(a) Initial submission of reports. The first calendar quarter for
which reports are required under Secs. 579.21 through 579.27 of this
part is the second calendar quarter of 2003.
(b) Due date of reports. Each manufacturer of motor vehicles and
motor vehicle equipment shall submit each report that is required by
this subpart not later than 30 days after the last day of the reporting
period. Notwithstanding the prior sentence, the due date for reports
covering all calendar quarters in 2003 shall be 60 days after the last
day of the reporting period.
(c) One-time reporting of historical information. No later than
September 30, 2003, each manufacturer covered by Secs. 579.21 through
579.26 of this part shall file separate reports, providing information
on the numbers of warranty claims or warranty adjustments and field
reports that it received in each calendar quarter from April 1, 2000,
to March 31, 2003, for vehicles manufactured in model years 1994
through 2003 (including any vehicle designated as a 2004 model), for
child restraint systems manufactured on or after April 1, 1998, and for
tires manufactured on or after April 1, 1998. Each report shall include
production data, as specified in paragraph (a) of Secs. 579.21 through
579.26 of this part and shall identify the alleged system or component
covered by warranty claim, warranty adjustment, or field report, as
specified in paragraph (c) of Secs. 579.21 through 579.26 of this part.
(d) Minimal specificity. A claim or notice involving death, a claim
or notice involving injury, a claim involving property damage, a
consumer complaint, a warranty claim or warranty adjustment, or a field
report need not be reported if it does not identify the vehicle or
equipment with minimal specificity. If a manufacturer initially
receives a claim, notice, complaint, warranty claim, warranty
adjustment, or field report in which the vehicle or equipment is not
identified with minimal specificity and subsequently obtains
information that provides the requisite information needed to identify
the product with minimal specificity, the claim, etc. shall be deemed
to have been received when the additional information is received. If a
manufacturer receives a claim or notice involving death or injury in
which the vehicle or equipment is not identified with minimal
specificity and the matter is being handled by legal counsel retained
by the manufacturer, the manufacturer shall attempt to obtain the
missing minimal specificity information from such counsel.
(e) Claims received by registered agents. A claim received by any
registered agent of a manufacturer under the laws of any State, or the
agent that any manufacturer offering motor vehicles or motor vehicle
equipment for import has designated pursuant to 49 U.S.C. 30164(a),
shall be deemed received by the manufacturer.
(f) Updating of information required in reports. (1) Except as
specified in this subsection, a manufacturer need not update its
reports under this subpart.
(2) With respect to each report of an incident submitted under
paragraph (b) of Secs. 579.21 through 579.26 of this part:
(i) If a vehicle manufacturer is not aware of the VIN, or a tire
manufacturer is not aware of the TIN, at the time the incident is
initially reported, the manufacturer shall submit an updated report of
such incident in its report covering the reporting period in which the
VIN or TIN is identified.
(ii) If a manufacturer indicated code 99 in its report because a
system or component had not been identified in
[[Page 45883]]
the claim or notice that led to the report, and the manufacturer
becomes aware during a subsequent calendar quarter that one or more of
the specified systems or components allegedly contributed to the
incident, the manufacturer shall submit an updated report of such
incident in its report covering the reporting period in which the
involved specified system(s) or component(s) is (are) identified.
(iii) If one or more systems or components is identified in a
manufacturer's report of an incident, the manufacturer need not submit
an updated report to reflect additional systems or components allegedly
involved in the incident that it becomes aware of in a subsequent
reporting period.
(iv) If the report is of an incident involving an injury and an
injured person dies after a manufacturer has reported the injury to
NHTSA, the manufacturer need not submit an updated report to NHTSA
reflecting that death.
(g) When a report involving a death is not required. A report on
incident(s) involving one or more deaths occurring in a foreign country
that is identified in claim(s) against a manufacturer of motor vehicles
or motor vehicle equipment involving a vehicle or equipment that is
identical or substantially similar to equipment that the manufacturer
has offered for sale in the United States need not be furnished if the
claim specifically alleges that the death was caused by a possible
defect in a component other than one that is common to the vehicle or
equipment that the manufacturer has offered for sale in the United
States.
(h) Reporting on behalf of other manufacturers. Whenever a
fabricating manufacturer or importer submits a report on behalf of one
or more other manufacturers (including a brand name owner), as
authorized under Sec. 579.3(b) of this part, the submitting
manufacturer must identify each such other manufacturer. Whenever a
brand name owner submits a report on its own behalf, it must identify
the fabricating manufacturer of each separate product on which it is
reporting.
(i) Abbreviations. Whenever a manufacturer is required to identify
a State in which an incident occurred, the manufacturer shall use the
two-letter abbreviations established by the United States Postal
Service (e.g., AZ for Arizona). Whenever a manufacturer is required to
identify a foreign country in which an incident occurred, the
manufacturer shall use the English-language name of the country in non-
abbreviated form.
(j) Claims of confidentiality. If a manufacturer claims that any of
the information, data, or documents that it submits is entitled to
confidential treatment, it must make such claim in accordance with part
512 of this chapter.
(k) Additional related information that NHTSA may request. In
addition to information required periodically under this subpart, NHTSA
may request other information that may help identify a defect related
to motor vehicle safety.
(l) Use of the plural. As used in this part, the plural includes
the singular and the singular includes the plural to bring within the
scope of reporting that which might otherwise be construed to be
without the scope.
Sec. 579.29 Manner of reporting.
(a) Submission of reports. (1) Except as provided in this
paragraph, each report required under paragraphs (a) through (c) of
Secs. 579.21 through 579.26 of this part must be submitted to NHTSA's
early warning data repository identified on NHTSA's Internet homepage
(www.nhtsa.dot.gov). A manufacturer must use templates provided at the
early warning website, also identified on NHTSA's homepage, for
submitting reports. For data files smaller than the size limit of the
Internet e-mail server of the Department of Transportation, a
manufacturer may submit a report as an attachment to an e-mail message
to odi.ewr@nhtsa.dot.gov, using the same templates.
(2) Each report required under Sec. 579.27 of this part may be
submitted to NHTSA's early warning data repository as specified in
paragraph (a)(1) of this section or by manually filling out an
interactive form on NHTSA's early warning website.
(b) Submission of documents. A copy of each document required under
paragraph (d) of Secs. 579.21 through 579.26 of this part may be
submitted in digital form using a graphic compression protocol,
approved by NHTSA, to the NHTSA data repository, or as an attachment to
an e-mail message, as specified in paragraph (a)(1) of this section.
Any digital image provided by a manufacturer shall be not less than 200
or more than 300 dpi (dots per inch) resolution. Such documents may
also be submitted in paper form.
(c) Designation of manufacturer contacts. Not later than 30 days
prior to the date of its first quarterly submission, each manufacturer
must provide the names, office telephone numbers, postal and street
mailing addresses, and electronic mail addresses of two employees (one
primary and one back-up) whom NHTSA may contact for resolving issues
that may arise concerning the submission of information and documents
required by this part.
(d) Manufacturer reporting identification and password. Not later
than 30 days prior to the date of its first quarterly submission, each
manufacturer must request a manufacturer identification number and a
password.
(e) Graphic compression protocol. Not later than 30 days prior to
the date of its first quarterly submission, each manufacturer which
wishes to submit a copy of a document in digital form, as provided in
paragraph (b) of this section, must obtain approval from NHTSA for the
use of such protocol.
(f) Information and requests submitted under paragraphs (c), (d),
and (e) of this section shall be provided in writing to the Director,
Office of Defects Investigation, NHTSA, 400 Seventh Street, SW.,
Washington, DC 20590.
Issued on: July 3, 2002.
Jeffrey W. Runge,
Administrator
[FR Doc. 02-17103 Filed 7-3-02; 4:21 pm]
BILLING CODE 4910-59-U